Labor Law Outline

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I. INTRODUCTION TO LABOR LAW: HOW WE GOT HERE AND WHERE WE’RE GOING A. Union defined: A group of employees that bargains collectively rather than individually

with their employer to improve their wages and working conditions.B. National Labor Relations Act: Governs whether employees want to deal with employers

collectively or individually. a. Reality

i. 1/5 of workers who took part in an organizing campaign were firedii. Most workers unionize today organize through private alternatives to

NLRBiii. NLRA has been unable to keep pace with the rapid changes of the

American economy b. Views

i. There is a consensus that American labor law is dead. It’s been classified as ossified or an “elegant tombstone for a dying institution”

1. NLRA is dysfunctional and too weak to ensure it fulfills its purpose. It’s too rigid

ii. Failures of NLRA have led not to an ossification of U.S. labor law, but to restructuring and rebirth

1. Unions and employers have developed private processes to replace NLRA’s failed procedures

C. Vegelahn v. Guntner , 167 Mass. 92 (1896): Workers went on strike in an effort to obtain higher wages and wanted to prevent Employer from getting new workmen so they started a picket line. They used a combination of social pressure, threats of personal injury or unlawful harm, and persuasion to break existing contracts. Held: The picket line was unlawful interference with the rights of the employer AND the other employees.

a. Reasoning by J. Allen:i. An employer has a right to engage all persons who are willing to work for

him, at such prices as may be mutually agreed upon; and persons employed or seeking employment have a corresponding right to enter into or remain in the employment of any person or corporation willing to employ them (a Constitutional right to contract). Non-physical (moral) intimidation may be unlawful. The injunction should be issued.

b. Dissent by J. Holmes:i. No injunction should issue for persuasion and social pressure; only for the

threats of physical violence.ii. Economic harm is not necessarily a legal injury.

iii. Relationship between employees and employers is a competitive one (“free struggle for life”). To contract effectively, employees need to be able to act collectively.

D. Plant v. Woods , 176 Mass. 492 (1900) : Parties are rival unions. Plaintiff union is comprised of workers who withdrew from the defendant union. Plaintiff union is challenging the legality of defendant union efforts to induce employees to join that union. Employers believed failure to honor Defendant union requests would lead to boycott and “trouble in their business.” Held: Purpose of defendant’s actions was to force employees to join their union and that is an illegal intervention into freedom of contract.


a. Reasoning:i. Every strike has an element of moral intimidation in it and moral

intimidation is illegal. Every strike may start to get violent as workers will prevent employer from hiring workers to take their places.

b. Dissent by Holmes: i. Asks whether the purpose of defendant’s actions is a justification for the

strike. If there is no justification, then the activity can be enjoined.ii. A larger, stronger union will enables workers to better fight on the

question of wages. Unity of organization is necessary to make the contest for labor effective, so the strike may be justified.

E. Background Material on the National Labor Relations Act a. Norris-LaGuardia Act: Established the predicate that peaceful, concerted

activities should not be enjoinable by the law. b. With the Wagner Act of 1935, Congress gave affirmative legal protection to the

activities that the Court in Plant and Vegelahn had enjoined. Now, law must facilitate workers in their attempt to organize and bargain collectively with employers by keeping both the Courts and Employers from interfering with this right to bargain.

i. Section 7: gives employees right to self-organization, join unions, bargain collectively through representatives of their own choosing and engage in other activities for mutual aid and protection

ii. Section 8: prohibits employer interference with organizations, from coercing employees from exercising labor rights, or from discriminating and discharging employees for engaging in labor activity, and for refusing to bargain with a union which exists in the workplace

c. Taft-Hartley Act (1947): anti-union measure in response to unions becoming too powerful.

i. Section 8(b): outlawed some concerted activities including: violence and intimidation, secondary boycotts, strikes to compel an employer to commit an unfair labor practice (i.e. discharging an employee for belonging or not in a union, jurisdictional strikes over work assignments

ii. Section 7: permitted states to outlaw union shop (must become a member of the union after employment)

iii. Section 8(a)(3): outlaws close shopiv. Section 301: suits for violation of a CB agreement may be brought against

labor unionF. J.I. Case Co. v. NLRB , 321 U.S. 332 (1944): After an NLRB election which union wins,

employer refuses to bargain with union saying that there are already individual employment contracts in place. Union claims that refusal to bargain violates section 8(a)(5) making it an unfair labor practice for an employer to refuse to bargain collectively with the representative of its employees. NLRB decision: Employer must no longer effect to the individual employment contracts, which were negotiated and cannot enter into any new employment Ks.

a. Held: Employer is forbid from enforcing the individual contract with the employees because it violates the NLRA.

b. Reasoning:


i. Majority rule means that the union supersedes individual agreements and replaces it with terms that resulting from the collective bargaining power that reflects the desire of the group

ii. Individual advantage is disruptive because it could be used by employer to preclude collective agreement

G. Is bargaining collectively through a union better than individually?:a. Not often that Supreme Court requires rights of minorities to be trumped by

majorityb. There is a greater need for a homogenous union contract when there is less

homogeneity among employeesc. There are not much options for a worker who doesn’t want a union, other than

leaving the workplaced. Superstars will do less well under a union unless unions take into account

differentiated performers. Some workers will make less through unionization than they would have through individual contracts

e. Unionization can pose difficulty for racial minorities

II. UNION ORGANIZING, UNION RECOGNITION, AND COLLECTIVE BARGAINING A. NLRA RULES

a. Background Material on NLRB Proceduresi. The “Board”

1. Adjudicative decisions made by five members of the NLRB appointed by President to 5-year terms with consent of senate

ii. Office of General Counsel1. GCs are appointed to 4 year term by President with consent of

Senate. General Counsel investigates charges of unfair labor practices to decide whether complaints should be issued on the basis of these charges and to direct the prosecution of such complaints. GC also represents Board in court proceedings to enforce or review Board decisions

iii. Regional Offices1. GC supervises and Regional Director directs these offices. Staff at

these offices: Field Examiners and Field Attorneys (they investigate charges, conduct elections, and prosecute complaints at hearings before ALJ).

2. Where Election petitions are filed when a party seek a representation election.

a. Representation petitions can be filed by an employer upon whom a demand for recognition and bargaining has been made by a union.

b. Can also be filed by a union seeking to represent employees upon a showing of interest from 30% of employees in the bargaining unit


3. Regional staff determines (a) whether employer & union are covered by NLRA and (b) whether group of employees constitute an appropriate bargaining unit

a. Issues as to appropriate bargaining and eligibility of particular voters sometimes done by consent of parties

b. Consent-election agreement: vests Regional Director final authority to rule on any disputes that may arise concerning the conduct of the election and to issue his or her determination as to the result

iv. When election conducted during course of strike1. Determination must be made whether the strikers and/or

replacements are entitled to vote2. If strike precipitated or prolonged by employer’s ULPs, striking

employees have right to return to work and displace any replacements hired by the company subsequent to the commission of the ULP. Strikers and not replacements are eligible to vote

3. If strike is an “economic strike,” employer has right to hire permanent replacements.

a. Replacements for ULP and economic strikes are presumed to be temporary employees and thus can’t vote

b. If replacements for economic strikers are permanent, they will be eligible to vote. If employer tells replacement they are “permanent”, then they can vote. They will lose this status if party challenging proves the replacement was not permanent.

c. Economic strikers can vote for up to one year after a strike UNLESS

i. Obtain permanent employment elsewhereii. They are discharged or denied reinstatement for

serious misconductiii. They have their job eliminated for economic

reasonsv. Decisions on elections are reviewable by the Board, but the Board grants

review only:1. Where a substantial question of law or policy is involved2. The Regional Director's decision is clearly and prejudicially

erroneous3. The conduct of the hearing in an election case or any ruling made

in connection with the proceeding has resulted in prejudicial error.4. There are compelling reasons to reconsidering an important Board

rule or policy.vi. Section 9(c)(3): a run-off election shall be conducted in which the 2

highest choices on the ballot will be on the run-off (when 2+ unions)vii. In recent years, unions have been avoiding the board and seeking

voluntary recognition via “card check” agreements with employersB. Employee Organizing and Employee Communication


a. 5 things to know about employee speech:i. Basic presumptions : Republic Aviation: Working time is for work. An

employer may prohibit union solicitation during actual work time. However, time outside of working hours, an employee can use that time as she chooses, even on company property. The employer cannot prohibit union solicitation outside of working hours even on company property.

ii. Right of reply : Can the employee engage in pro-union speech on company time during working hours when the employer engaged in anti-union speech? No, United Steelworkers

iii. Context : Not all workplaces are the same. When the type of work calls for different presumptions, the NLRB has found that legitimate. Ex: Special rules for hospitals.

iv. Talking to non-employees : Section 7 doesn't distinguish between soliciting support from co-workers or from non-employees. No substantive distinction. (Stanford Hospital)

v. Balance : Balance employer and employee rights. In all employee speech cases, the NLRB is striking balance between employee Section 7 rights and employer rights. Courts don't tell us where employer rights come from (no citations, no discussion as a general matter).

b. Republic Aviation Corp. v. NLRB , 324 U.S. 793 (1945): Employer had non-solicitation rule in the factor and offices. Employee solicited union membership in plant by passing out application cards to employees during lunch breaks. Employee discharged and 3 other employees discharged for wearing UAW-CIO steward buttons. NLRB: Employee no-solicitation rule violates NLRA- here, it violated 8(1) of the NLRA, as it interfered with, restrained, and coerced employees in their rights under Section 7 and discriminated against the discharged employee under 8(3) (unfair labor practice). Held: NLRB decision upheld. Rule against solicitation is invalid as to union solicitation on employer’s premises during employee’s own time. Discharge for violation of that rule discriminates within the meaning of 8(3) as it discourages membership in a labor union.

i. Reasoning:1. Balancing test: The Court balances the employees' rights to

organize (from Section 7 Wagner Act) vs. the employer's right to maintain discipline in their establishments (from common law entitlements, either based in contract or property).

a. The NLRA abridges the employer's common law rights. But how do we know how far the NLRA abridges these rights?

2. Peyton Packing : If solicitation is during non-work time or in non-work areas, presumed valid unless the employer shows special circumstances demonstrating that the solicitation is invalid. However, there is a presumption of that an anti-solicitation policy is valid if during work time.

3. Court rejects employer argument that the rule is valid because it applied it equally against all forms of solicitation; it did not discriminate against union solicitation.


a. More difficult to organize if no access at workb. Supreme Court deferring to NLRB on balancing

c. NLRB v. United Steelworkers of America (NuTone and Avondale) , 357 U.S. 357 (1958) : Employer may give antiunion speeches to employees on company time and property (“captive audience”) as long as speech is not coercive. This is true even if employer refuses to give the union an equal opportunity to reply on company property during work hours. NLRB: This is an unfair labor practice because employer statements had coercive antiunion sentiment. Held: Employer statements were not coercive. Not an unfair labor practice as union did not ask employer to make an exception for them. If Board concluded that such a request would have been denied, then may have been a ULP.

i. Section 8(c) says that expression of views by the employer can’t be an unfair labor practice unless it’s coercive, a threat, etc.

ii. There was no evidence that the employees had requested an exemption to make pro union statements, as there had been exemptions in the past for charity and could have been granted again (even though an anti-union company in both workplaces)

iii. No showing that this made it hard to organize—just that a channel of communication was lost, need facts to show that this made it difficult to solicit members. Union can find alternative channels.

iv. Warren dissent1. If employer speech is coercive, then a non-solicitation rule should

be struck down (but not if the speech is noncoercive). 2. Court’s decision is grounded in view that employees during

working hours are a classic captive audience. Thurs, unfair to permit coercive anti-union speech while shutting down employee speech. Need to level the playing field.

3. 8(c) doesn’t mean that 1st amendment applies in workplace context so no one has right to say anything.

v. What if all employer speech is coercive (in light of captive audience problem).

1. But it’s paternalistic to some degree to say that no matter what, workers will feel coerced.

2. But employer’s opinion about what will happen if there is a union doesn’t necessarily mean that it will happen. And the info could be useful to employers.

3. What if we get out of the captive audience context—limit § 8 to prevent employers from speaking during work time as well.

d. Beth Israel Hospital v. NLRB , 437 U.S. 483 (1978) : Hospital didn’t allow solicitation (even on nonwork time) in places where hospital visitors or patients had access, including the cafeteria where there were few visitors and patients. NLRB: Hospital policy of nonsolicitation must not extend to coffee shop and cafeteria. Held: NLRB decision upheld- In hospital context employer can ban solicitation in patient care area even during nonwork time, but if not in a patient care area, the employer cannot ban solicitation. Thus, since cafeteria is a


natural meeting place for employees, and not for patients, solicitation should be allowed there.

i. Hospitals are special. Main duty is to care for patients which requires a tranquil atmosphere so different rules apply.

1. St John’s patient disturbance test: hospitals must establish both that (a) patients will witness employee solicitation and (b) that they will likely be disturbed by it.

ii. Congress provided for right to strike in section 8(g), so there definitely is a right to solicitation

iii. Analogous to restaurant industry: employer can prevent solicitation in dining area as people go to restaurant to eat so it is inappropriate to disrupt the dining room. There is a BALANCING TEST

e. Stanford Hospital and Clinics v. NLRB , 325 F.3d 334 (D.C. Cir. 2003) : Hospital had policy that employees couldn’t solicit/distribute materials to fellow employees in areas adjacent to patient units (including hallways and waiting areas) and couldn’t solicit to nonemployees. NLRB: Lift restrictions as to locations and to non-employees. No evidence that ban on solicitation to nonemployees was needed to protect patents. Held: Upholds NLRB as to location restrictions and nonemployee solicitation/distribution being invalid.

i. Hospital itself placed anti-union information in the areas adjacent to patient units. This weakens employer argument.

ii. Non-employee solicitation/distribution ban. Use Eastex 2-part approach1. Is the kind of activity protected by section 7 and 8(a)(1)?

a. Workers allowed to approach general public- no substantive distinction made b/t approaching employees and non-employees

2. If activity is protected, does the fact that the activity take place on employee property give rise to a countervailing interest that outweighs employees’ §7 rights?

a. Activity does not give rise to countervailing interest (in patient privacy) b/c Stanford hasn’t shown that the materials nonemployees would receive would be disruptive

iii. Maybe there should be a different presumption i.e. likelihood to disrupt?C. Union Organizers and Workplace Communication

a. 3 Themesi. Property or Privacy?

1. Board will not order employer to permit union on property to hand out flyers but it will permit employer to provide employee lists

ii. Equalize or Recognize? 1. Whether NLRA demands pro and anti-union speech to be afforded

equal opportunities or just some opportunity to make pro-union speech

2. Under Bonwit Teller, equalization was important, but that doctrine was rejected. Now, Board asks what is required to equalize employees some reasonable chance to communicate about unionization.


iii. “Effective” Communication 1. Speakers vs. listeners divide: How does court divide section 7

rights when employee is speaker v. listener (hearing about union opportunity from someone else)? Employee as speaker is protected. Employee as listener is not. BUT, sometimes free employee choice depends on employee’s ability to learn the advantages of self-organization from others.

2. Ability to stand on a grassy strip and post signs about organizing is sufficient

a. BUT, direct communication is important as it gives the union more of a personal face/aspect

b. Prof: inquiry should be Does Lechmere worker who doesn’t get face to face access to union have a free choice as to how to vote? Prob not.

b. New rule: (Nutone/Avondale plus Livingston Shirt): Employer can speak to employees during work time to discourage them from unionizing. Even if that speech violates the employer's own rule, the union/employees have no right to reply.

i. Is this the right balance?1. Abrogation argument: The statute should be interpreted to do the

minimum amount to abrogate common law rights while effectuating the legislative intent.

c. Section 7: (Look to the 3 rights, mainly ensuring freedom of choice)i. Assumptions:

1. Must involve right of employees to communicate about unionization

2. Employee ability to avail themselves of their Sec. 7 rights also involves their right to talk to union organizers; must learn advantages of self organization from others in some circumstances.

ii. 3 Rules re: union organizers1. Right of reply (Nutone/Avondale question): Employer can deliver

an noncoercive anti-union message and give no right of replya. Equal opportunity vs. some opportunity for organizing

speech: What is necessary for free choice? Bonwit Teller pointed toward equalization, but current doctrine rejects equalization view.

b. Coercive employer speech, however, is basis for an ULP2. Employee lists : Can require release of employee lists

i. Property vs. privacy: Employer property rights tend to trump employee privacy rights.

3. Property access : (Lechmere) Non-employee union organizers cannot communicate on employer property unless no other reasonably effective way to communicate with employees. (So long as the employees are not cut off from the flow of information that characterizes our society, then no right of access). Does not require direct contact.


d. Livingston Shirt Corp. , 107 NLRB 400 (1953) : Employer had broad no-solicitation rule against “activities for or against…union….during working hours.” Employer violates its own rule and makes antiunion speech shortly before election, union loses. This happens again.

i. Union arg: employer anti-union speech gives union an opportunity to respond under the Bonwit Teller doctrine

ii. Held: Board rejects Bonwit Teller because under 8(c) employer speech can’t be the basis of an ULP unless that speech is coercive. To hold that if employer speaks, union must be allowed to speak, basically eviscerates 8(c) by burdening the right or making it meaningless.

iii. Rule: Absent special circumstances, an employer can refuse to grant to the union a right equal to communicate with employees in his own plant. In the absence of an unlawful broad no-solicitation rule (prohibiting union access to company premises other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business i.e. hospital), an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union’s request to reply.

iv. There are other means for a union to contact employees- through written materials, talking to individual employees leaving or entering work, or at their homes, speeches at union hall- so long as this is during employees own time and attendance is voluntary.

1. Employer’s premises is natural forum for him just as union hall is natural form for union

2. BUT, other means of communicating with employees is unbalanced since employer has these options too, plus the workplace

v. BUT, if union were req’d to have access to workplace, employer would need access to union hall, but employees don’t need to be at union hall

vi. BUT, Republic Aviation stated that the workplace is site of organizational activity and uniquely suited for communication about unionization

e. Excelsior Underwear Inc. , 156 NLRB 1236 (1966) : Organizing drive, employer mails anti-union materials to employees union asks for names and addresses of employees to respond to employer mailingemployer refuses. Employer concerned about employee’s interest to privacy as they may not want union to have their information. Employee’s right to unionization is at stake.

i. New Rule: Within 7 days after the Regional Director has approved a consent-election agreement between the parties or after the Regional Director or the Board has directed an election, the employer must file an election eligibility list with the Regional Director containing the names and addresses of all eligible voters. Regional Director must then make this information available to all parties in the case. Failure to comply shall be grounds for setting aside the election whenever proper objections are filed.

ii. Rationale


1. Employees need a free and reasoned choice on the question of unionization. Free choice means informed choice.

2. Removes impediment to communicating with employees by union3. Other modes of communicating with employees are not as

effective because risks not reaching all employees 4. Maximizes likelihood that all voters will be exposed to arguments

for and against union representation5. Eliminates necessity for challenges based solely on lack of

knowledge as to the voter’s identity & eligibilityiii. Livingston Shirt and Excelsior Underwear stand for the proposition that

employer property interests are more important than employee privacy interests.

1. Court not that concerned with employee privacy-union will always get list of employee names

2. BUT, if don’t provide employee address lists, how would one effectuate section 7 interests if unions can’t go to the workplace (Sec. 8(b)- ULP of union to trespass employer property

iv. “Effective” information about unionization may mean face-to-face contact (this is implied by Sec. 7)

f. Lechmere, Inc. v. NLRB , 502 U.S. 527 (1992) : Employer forbid nonemployee organizers of shopping mall from placing handbills on cars of mostly employees (“grassy strip”) within the parking lot owned jointly by the Lechmere store and surrounding small stores. Held: This is permissible.

i. General Rule: Employer may protect his property against nonemployee distribution of literature (Babcock). Babcock: Employer need not accommodate nonemployee organizers’ desire to distribute materials to employees on company property unless the employees are otherwise inaccessible.

1. Exception is narrow: Applies only when the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to with them.

a. Examples: logging camps, mining camps, and mountain resort hotels (isolated from ordinary flow of information that characterizes our society))

ii. Balancing test of Jean Country (derived from Hudgens) should be used ONLY IF access by nonemployee organizers is infeasible: Balance 1) the degree of impairment of the Section 7 right if access should be denied, as it balances against 2) the degree of impairment of the private property right if access should be granted. We view the consideration of 3) the availability of reasonably effective alternative means as especially significant in this balancing process.

iii. Rationale1. NLRA confers rights on employees; not unions or nonemployee

organizers. Sec. 7 doesn’t protect nonemployee organizers unless they don’t have alternative means of access


iv. Dissent by White: That Babcock stated that inaccessibility would be a reason to grant access doesn't mean that there are no other circumstances permitting access. Second, Babcock is not a general rule; instead, we've reaffirmed that the standard is a neutral and flexible rule of accommodation. Third, Babcock is at odds with deference to administrative agencies. Finally, the majority concludes an error in its application of the outdated standard of Babcock to review the NLRB's conclusion that there were no reasonable alternative means available.

v. Considerations1. Is Sec. 7 a negative right not to interfere with employee’s ability to

go out and get the information? 2. Definition of employees is broad and should be determined by the

realities o how unionization works3. Institutional competence: Court determining that reasonably

effective communication includes holding up sign, visits at home, etc. Board should be deciding this.

g. Cynthia Estlund, Labor, Property, and Sovereignty After Lechmere , 46 STAN. L. REV. 305 (1993):

i. If an employer wants to prohibit activity that’s otherwise protected by section 7 by asserting its right to property, employer must have good reason for kicking organizers off parking lot. Inhibiting union communication can never be a good reason because union communication is protected by section 7.

ii. Definition of employees does not necessarily mean the employer’s employees but could be nonemployee organizers—they are employees of the union. This is a less persuasive argument

D. Employer Speech a. Peerless Plywood Co. , 107 NLRB 427 (1953) : Employer gave noncoercive

speech to employees during company time 24 hours before the election and did not permit union to do the same in the same premises. Held: Bonwit Teller was rule at the time of election and employer conduct would have been in violation of that rule by not giving union opp to respond. No need to set aside election.

i. New Rule: Employees and unions will be prohibited from making election speeches on company time to the employees within 24 hours before the scheduled time for conducting an election. Violation of this rule will cause the election to be set aside when valid objections are filed. Employer can make such a meeting and announcement more than 24 hours before the election.

ii. Rationale1. Combination of use of company time for preelection speech and

delivery of that speech on the eve of election tend to interfere with freedom of choice and free election.

2. Livingston Shirt : overrules Bonwit Teller and states that in the absence of either a privileged or an unlawful broad no-solicitation rule, an employer does not commit an unfair labor practice if he


makes a noncoercive speech to employees and denies union an opportunity to reply on company premises

iii. Dissent: location, not timing of speech matters. Bring back Bonwit Teller. There’s value in having union speak. Allowing union to come into company gives it legitimacy.

iv. Policy 1. Problem with right of reply is someone always has the last word2. Temporal buffer between when employer’s vote and the last time

they sit through a captive audience meeting is what matters3. Section 7 is concerned with information. Is more speech

necessarily more information (or over information making messages lost in the mix). We want to enable employee to make a free choice about unionization

a. Right to talk about unions to each otherb. Right of employees to talk to union organizers

b. NLRB v. Gisell Packing Co. , 395 U.S. 575 (1969) : Employer engaged in advertising campaign to employees that the plant would close if unionize and move elsewhere; and the age and qualifications of the employees would make it difficult for reemployment. NLRB: Employer’s statements illegal because could be reasonably interpreted by employees to threaten job loss. Held: Statements of employer were threats and thus illegal.

i. Rule: An employer is free to communicate his general views about unionism or specific views about a particular union so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” (Section 8(c)).

1. 3 part testa. Prediction must be based in objective factb. Employer must be able to demonstrate that consequences

asserted are probablec. Consequences referred to must be beyond the employer’s

control (inevitable economic consequences to unionization) or a management decision to close plant in event of unionization (intense opposition to unionization)

i. Employer cannot make prediction about actions that only he unilaterally can decide to take on his own initiative for reasons unrelated to economic necessities

2. Balancing the rights of employers vs. rights of employees to associate freely must take into account the nature of the employment relationship.

a. The economic dependence of the employees on their employers and the tendency of employees to pick up implications of what the employer has said that may be more readily dismissed by a more disinterested ear

3. It seems unlikely that an employer can meet the 3-part test because how can they know what the union will demand. Also, the union is


unlikely to demand anything that will cause employer to shut down.

ii. Policy1. Although most statements by employers are threats, courts have

not been faithful to the Gisell standarda. Informing employees about economic effects of upcoming

vote- not threatb. Providing employees with relevant factual information

about union’s history at the facility- not threatc. NLRB v. Exchange Parts Co. , 375 U.S. 405 (1964) : Employer gave employees

economic benefits (birthday pay, greater overtime pay during holidays & new vacation schedule) after announcement of union election date and it also distributes anti-union literature. Held: Conferral of benefits during a representation election interferes with the right to organize.

i. Rule: §8(a)(1) prohibits conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization. States that it is a ULP for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

ii. Danger is diminished if benefits are conferred permanently and unconditionally, but absence of conditions or threats would be of controlling significance only if it could be presumed that employer won’t confer additional benefits or renegotiate existing benefits in the future.

iii. By giving a little bit more (but less than what union would give), employer action would prevent workers from voting for union

iv. Such employer action demonstrates his economic powerv. Policy

1. This view is paternalistic to assume that employees are too risk-averse to make a free choice and so the law must intervene

2. “fist inside velvet glove” theory: short-term gains, the benefits of which could be taken away right after union win

3. Why not make the ULP retracting the benefit instead? a. Hard to prove (could happen a long time after)b. Employees will know that employer can take it away at any

time4. NLRA has an interest in protecting unions as institutions. A failed

organizing drive in one area could affect an organizing drive elsewhere

d. Midland National Life Insurance Co. v. Local 304A, United Food & Commercial Workers, 263 NLRB 127 (1982) : Day before the election, employer distributes flyers (along with employee paychecks) with photos of companies they claim have been abandoned or not reached employment contracts after being organized by the union. Er also provided a financial report filed with the government showing that no disbursements were made on behalf of individual members. Holding: The employer documents were only misrepresentations, so election (which union lost) upheld.


i. Rule: Shopping Kart Food Market: Board will no longer probe into the truth or falsity of the parties’ campaign statements, but would instead recognize and rely on employees “as mature individuals who are capable of recognizing campaign propaganda for what it is and discounting it.” Elections will be set aside not based on the substance of the representation but only for the deceptive manner in which it was made (its source, i.e. forgery).

1. Idea that employees cannot be relied upon to sort out the merits when there is deception as to the source of campaign statements

ii. Court will continue to protect against other campaign conduct, such as threats, promises, etc. which interferes with employee free choice

iii. Court overturns rule of Hollywood Ceramics (election would be set aside when there has been campaign misrepresentation or trickery, or falsity at such a time which prevents the other party from responding)

1. Reduces litigation- ensures certainty & finality of election results2. Difficult to determine the “truth”

iv. Policy1. Court does not reach core of the notion of free employee choice2. Another instance of Board flip flopping on their decisions3. Unless you equalize employer and union ability to talk to

employees, there is not necessarily a free marketplace of ideas where statements will be proven false.

a. Best approach is to ensure all sides of debate are heard and have equal opp to speak

4. Similar to political context in that statements that are not true are protected by the 1st Amendment

e. Inflammatory appeals decision: Board overturned results of election when employer distributed documents linking unionization to anti-Christianity and race-mixing. Rule: Have to show that inflammatory appeal was made and that it affected the results of the election.

E. The Bargaining Unit and the Duty to Bargain a. Background Material on Bargaining Units

i. §9(a): a representative chosen by “the majority of the employees in a unit appropriate for such purposes” is to be the exclusive representative of all employees in that unit. Before an election, Board must determine which group of jobs will serve as the election constituency that can vote on union representation

ii. Majority rule: Union is required to bargain for all employees in the bargaining unit, not only for the employees who voted for it or union members

iii. In making unit determinations, Board seeks employee group united by a community of interest. NOT employees having a substantial conflict of interest, nor omits employees sharing a unity of economic interest with the employees in the election. I.e. professional employees cannot be grouped with nonprofessional employees.

iv. Employers tend to prefer larger units because harder to organize, more


diverse and difficult to manage constituency. However, can also stop more work during a strike. Unions and the Board tend to prefer small units.

b. Multi-Employer Bargainingi. Multiemployer bargaining is when a number of employers within a single

area or industry band together to bargain as a group with a single union which represents employees at all of the companies. Can only be established consensually after a representation has been designated.

ii. To determine whether such a unit is appropriate Board looks at: (a) history of employee’s participation for a substantial period of time in joint bargaining negotiations and (B) its consistent adoption of the agreements resulting from such negotiations

c. Background Material on Duty to Bargain in Good Faithi. § 8(d): “To bargain collectively is the performance of the mutual

obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

1. 9th Cir: mpo Employer must have an open mind and a sincere desire to reach an agreement but also a sincerely effort must be made to reach a common ground.

ii. §8(a)(5): unfair labor practice for employers to refuse to bargain with employees in good faith

1. Bad faith : Inferred from nature of substantive proposals made during negotiations OR Particular tactics used as per se violations of duty to bargain in good faith OR Based on the totality of the bargaining tactics employed

d. *Bargaining Units* American Hospital Ass’n v. NLRB, 499 U.S. 606 (1991): Board enacted rule defining the employee units appropriate for collective bargaining in hospitals and that only 8 units shall be appropriate with exceptions. Agency deference case on whether NRLB has authority to specify certain bargaining units for hospitals rather than by general rules as in other industries. § 9(b) of the NLRA requires the Board to make a separate bargaining unit determination in each case and prohibits general rules. Held: This action is within NLRB power. Board is still making a determination in each case—whether the facility is an acute care hospital and whether certain employees are properly placed in certain units.

e. NLRB v. Truitt Mfg. Co. , 351 U.S. 149 (1956): Employer here claimed it could not afford to pay higher wages, but refused to produce information substantiating its claim. Held: Refusal to substantiate a claim of inability to pay increased wages may support finding of failure to bargain in good faith.

i. §8(a)(5)- ULP for employer to refuse to bargain collectively with representatives of his employees (vice-versa for unions under §8(b)(3).


ii. § 8(d)-ULP to refuse to bargain in good faith.1. Bargaining in good faith requires disclosure2. Claims made by Employer must be honest. BUT, what does

“honest” mean?iii. §204(a)(1): admonishes both employees & employers to “exert every

reasonable effort to make and maintain agreements concerning rates of pay, hours and working conditions”

iv. Policy1. Type of information disclosure regime we would require depends

on the broader question of what CB or good faith bargaining actually means

a. If good faith bargaining means the way a supplier would negotiate a purchase price from a supplier, then narrow view of disclosure rules are desired

b. If it means joint sovereignty/control of the firm, we would want a broader disclosure rule

2. Why a different rule than in campaign setting (Midland National)? Bargaining more resembles joint sovereignty.

f. NLRB v. A1 King Size Sandwiches, Inc. , 732 F.2d 872 (11th Cir. 1984) : Union makes allegation that company was engaging in surface bargaining with no intention of entering into CB agreement. Company rejected alternative wage system, just cause discharge policy and wanted a management dispute resolution clause. Held: Company engaged in surface bargaining and thus failed to bargain in good faith. This is a ULP.

i. Company proposals were unusually harsh & unreasonable and practically unworkable. There would have been basically no improvements to working conditions. (i.e. asking union to give up its right to arbitrate grievances).

ii. Supreme Court says that NLRA does not compel any agreement whatsoever. The Board cannot directly or indirectly compel concessions or sit in judgment as to the substantive terms of the CB agreement. But Board can look at the reasonableness of the positions.

iii. Policy: If no duty to bargain and if Board doesn’t examine substantive terms, duty to bargain means: sitting down and negotiating. Parties more likely to reach agreement if they at least give it a try.

g. NLRB v. Insurance Agents’ International Union , 361 U.S. 477 (1960) : During negotiations with the employer, the union sought to put economic pressure on the employer by sponsoring on-the-job conduct designed to interfere with the employer's business (i.e. employee lateness, refusing to solicit new business, not fulfilling reporting duty, mass demonstrations). Employer filed charge against the union for refusing to bargain collectively. NLRB: union activity was an unfair labor practice, because the tactics during negotiations were the antithesis of reasoned discussion that the union was duty bound to follow. Instead, it revealed an unwillingness to submit its demands to the bargaining table where there is free interchange of views. CB should be about reasoned discussion, not exercise of


economic power. Held: Union’s actions were not contrary to bargaining in good faith.

i. §8(b)(3): “It shall be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer, provided it is the representative of his employees.”

ii. Removal of tactics designed to exert economic pressure would reduce the scope of bargaining leverage on either side

iii. Interfering with economic pressure would interfere with shaping of CB agreement. Availability of economic weapons/deployment of economic power by either side influences the substantive content of bargaining agreements.

iv. Argument that only strikes are permissible during bargaining stage is not permissible

v. Policy: If economic pressure is crucial, why statutory duty to bargain?1. Phases Argument : duty to bargain imposes a certain chronology on

the relationship (sit down first, economic pressure later)2. Economic power should only be there in theory not in reality3. Value of deliberation : if there were no statutory duty to bargain

opening up channels of communication, there would be bloodbath every time

4. Employer’s economic power is to test union strength (lock out, strike replacements)

h. NLRB v. Katz , 369 U.S. 736 (1962) : While in process of bargaining collectively, employer unilaterally instituted changes to mandatory subjects of bargaining and which were presently being discussed with union (sick leave, wage increases more generous than offered to union). Held: Court orders cease and desist order- employer’s unilateral change to conditions of employment under negotiation is a violation of §8(a)(5)—circumvention of duty to negotiate. It frustrates the objectives of §8(a)(5) as much as does a refusal to negotiate in fact.

i. Rule: Unilateral action by an employer without prior discussion with the union does amount to such a refusal to negotiate and permits the Board to hold such action to be an unfair labor practice without also finding the employer guilty of overall subjective bad faith. Board is authorized to order cessation of this behavior.

ii. Even if merit increases are part of quarterly or semiannual reviews, it still negotiating in bad faith to give them if part of subject of negotiation with union

iii. COA: refused to enforce Board’s order based on Insurance Agents because it viewed employer as exercising its economic power. BUT, in Insurance Agents, the union didn’t foreclose bargaining or deliberation of any issues; just put pressure on employer. Here, an employer’s change to unilateral terms closes the door to negotiation. A union can rarely ever shut down bargaining.

F. Subjects of Bargaining and Remedies for Bad Faith Bargaining a. Background Material on Subjects of Bargaining : Employer and union must

bargain about every mandatory subject embraced within the statutory phrase of


§8(d). Insisting upon bargaining on a non-statutorily mandatory subject may be a per se violation of §8(a)(5) (Employer ULP) or §8(b)(3) (Union ULP). According to the §8(a)(1), (3), and (5), employers must “confer in good faith with respect to wages, hours, and other terms and conditions of employment.”

i. Theories:1. Joint sovereignty : Both substance and process are to be decided by

both parties. Insisting that one of the substantive topics are the decision of one side or another violates bargaining.

a. Substance: wage rate, family leave, health plan, rules of discharge

2. Free contract : Extent of labor & management participation in decisions is itself a matter of bargaining.

ii. Remedies: § 10(c): After an unfair labor practice has been committed, the NLRB shall issue and cause to be served an order requiring that person to cease and desist from such unfair labor practice and take such affirmative action, including reinstatement of employees, as will effectuate the policy of the order. They will not compel an agreement

b. NLRB v. American National Insurance Co. , 343 U.S. 395 (1952): Instead of a broad arbitration clause, employer insisted and instituted a management functions clause which removed certain topics of discussion (promotions, discipline and work scheduling) from arbitration and under the exclusive responsibility of management. Union refused to agree to the clause to the extent that it covered mandatory subjects of bargaining. NLRB: Employer did not bargain in good faith and should be prohibited from bargaining for a management functions clause which covered a “condition of employment.” Held: Bargaining for a management functions clause is not a per se ULP. Employer can demand in bargaining that it maintains control over something that is a mandatory subject of bargaining.

i. Under Taft-Hartley, duty to bargain collectively does not require either party to make concessions.

ii. Bargaining for management functions clause is commoniii. Board should not judge the desirability of substantive terms of labor

agreementsiv. Dissent: When an employer tells the union that the only way to obtain a

contract as to wages is to not bargain about other working conditions is to refuse to bargain about those other conditions of employment, which is a ULP.

v. Union’s Arg: A mandatory subject of bargaining is the joint responsibility of the union and the employer (theory of joint sovereignty/joint control).

1. We are not as wedded to “who decides” but more so “how much.” There are certain items that must be jointly determined; putting this is in a management responsibility clause is inconsistent with the Act.

c. *What is part of this mandatory obligation* Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964) : Around the time of expiration of the union contract, employer decides to contract certain work to a subcontractor. Union files ULP under §8(a)(5) that employer violated duty to bargain. NLRB: Although company


decision was based on economics and not anti-union animus, it was a ULP not to discuss issue with the union. Employees must be reinstated with backpay. Held: Board decision upheld.

i. “Terms and conditions of employment” covers the termination of said employment (which is the result of subcontracting). Whether or not you have employment is a term & condition of employment. BUT, this doesn’t make sense as you don’t have terms and conditions of employment unless you have employment.

ii. Including contracting out within definition of mandatory subject of bargaining will fulfill NLRA’s goal of labor peace

iii. Only the exact kind of contracting out that happened here is subject to duty to bargain…replacement of employees in an existing bargaining unit with those of an independent contractor to do the same work, under similar conditions of employment

iv. J. Stewart’s Concurrence (now the law): Employer has no duty to bargain over decisions that lie at the “core of entrepreneurial control” as they are fundamental to the basic direction of a corporate enterprise (i.e. whether management wants to replace workers with machines.) Terms and conditions of employment refer to the physical dimensions of the working environment. Whether there is employment is not always a condition of employment (sometimes the connection is too attenuated).

d. First National Maintenance Corp. v. NLRB , 452 U.S. 666 (1981) : First National supplies its customers with a contracted-for labor force, and hires personnel separately for each customer. Shortly after the union was elected, First National terminated a contract with Greenpark, one of its customers, for economic reasons that had developed prior to the union's election. It informed the employees that they would be terminated. The union requested to bargain over the termination, but First National refused. Union files ULP. Board: Employer refused to bargain. Held: The decision to terminate the contract was not part of §8(d)'s “terms and conditions” over which Congress has mandated bargaining. Mandatory subjects of bargaining are topics that settle aspects between employers and employees.

i. 3 different types of subjects of bargaining1. Typical conditions of employment are mandatory subjects of

bargaining. 2. Other easy category- choice of advertising, product design,

financing & investment conditions: these decisions are too attenuated from employment to constitute a mandatory subject of bargaining.

3. Topics that have as its focus, economic viability. ii. Balancing Test: in view of employer’s need for unencumbered decision

making, bargaining over management decisions that have a substantial impact on employment should only be required if the benefit for labor-management relations and the collective bargaining process outweighs the burden placed on the conduct of business.

1. Balancing statutory rights against background property rights


iii. Union could not have had much to say about negotiation over the management fee. An employer may need to act with speed; requiring bargaining on this is a substantial burden on employer’s ability to conduct business. Employer’s need to operate freely outweighs the incremental benefit that might be gained from the union’s participation in making that decision.

iv. Dissent: Balancing test is odd because it balances employer’s interests against CB process and not against employee’s interests. BUT, benefits of CB flow to the employees. Wrong result- union could have offered concessions.

e. H.K. Porter Co. v. NLRB , 397 U.S. 99 (1970) : Union and employer negotiated 8 years over a “check off” clause, whereby employer would deduct union dues from employee paycheck and give them to union. Company allowed paycheck deductions for charity contributions. NLRB: Er not bargaining in good faith. Orders the “check off” provision to be executed by employer. Held: Board cannot compel a substantive provision in any contract—Board is just a referee and can’t dictate results.

i. Reasoning1. §8(d) says duty to bargain does not compel either party to make

concession or agree to a proposal2. §10(c): When Board finds a ULP, it shall issue and cause to be

served upon such person to cease and desist from the ULP, including affirmative action to effectuate the policies of the act. Broad grant of remedial authority

3. Board can require parties to negotiate but §10(c) remedies are limited to carrying out the policies of the act. Among these policies are freedom of contract.

ii. Policy1. Board effectively cannot order employer with anti-union animus to

bargain2. Punitive damage is not an available remedy. Board is not

empowered to order punitive damages. Also, (1) it is difficult to calculate what the damages should be based on what the contract would have been and (2) assigning damages is equivalent to writing the contract.

3. Alternative regime that imposed obligation to reach agreement: i.e. if don’t reach agreement after a month, it will go to an arbitrator and that K will last for 2 years at which point parties will bargain again

a. Pros: fulfills purpose of act, arbitration will cause a history of positive labor relations and enable agreements in the future

b. Cons: subject to abuse, lacks standards for arbitrators, appeases employers by not forcing them to make concessions

4. Employee Free Choice Act


a. One of its sections would have required arbitration of first contracts if parties could not reach agreement within a period of time. BUT, Congress proposed no standards for the arbitrator

b. Sachs thinks this provision of the Employee Free Choice Act will not be enacted

G. THE NEW LABOR LAW: PRIVATELY NEGOTIATED PROCESSES FOR UNION ORGANIZING AND RECOGNITION

Perhaps the most significant response by unions and employers to the “ossification” of American labor law has been the attempt to replace NLRA rules and procedures with privately-negotiated ones. In the next classes, we turn to the heart of the emerging labor law by exploring judicial treatment of (1) privately-negotiated processes for union recognition that replace NLRB elections; and (2) privately-negotiated “codes of conduct” for union organizing campaigns.

H. Union Recognition without the National Labor Relations Board a. Paul Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization

Under the NLRA, 96 HARV. L. REV. 1769 (1983) : Employer resistance to union organizing campaigns can only be eliminated through “instant elections,” since relief to union organizers is very slow under the current drawn-out system.

i. Delay between petition and election reduces union ability to win elections. Gives employer ability to intervene and to engage in coercion. There has also been a rise in ULP, and that hasn't been enough to overcome this problem. Particular problem with discriminatory discharges.

ii. Employers will engage in discriminatory discharges if the cost of unionization is higher than modest backpay money. Also, it takes 2 years on average for the NLRB to order reinstatement. This is way too long for effectiveness. These people are out of the workforce for 2 years-- that doesn't remedy the harm. Furthermore, Board is consistently excising groups of employees from the Act’s protection (undocumented immigrant workers are entitled to neither reinstatement nor backpay)

iii. Weiler proposal: Change to cardcheck, change the rules of conduct during the campaign (e.g. employers may not say “don't vote for the union.”)

1. Once majority of employees have signed cards, employer is obligated to bargain.

iv. Weiler's window: 1/5 union organizers gets fired pre-election and half of employers threaten to close the plant. The statute fails to ensure employee free choice due to this. Employers close the chance of union's success prior to the election.

b. NLRA 8(a)(5): Employer commits ULP by failing to bargain collectively with employees' collective representative. Does not say how the employers should pick their representative.

i. § 9(c)(1)(b): According to Taft-Hartley Act, employer can petition for election when it has doubt about the union's majority status based on authorization cards.

1. Joy Silk doctrine : This doubt must be a good faith doubt.2. Gissel doctrine : The employer still must have good faith doubt.

Employer who requests an election is presumed to have good faith


doubt. Basically, good faith is irrelevant in the beginning. However, if the employer engages in serious unfair labor practices between requesting the election and the actual election, it will be affirmative evidence that the employer was not acting in good faith. However, it is possible for a union to show majority support through cards alone if the employer recognizes the union based on card checks.

3. Linden Lumber : The employer does not need to recognize card checks as a demonstration of majority support. It can simply ignore the union, and it is on the burden of the union to petition for election.

a. Union response: Some unions have pursued voluntary recognition contracts, where the employer will recognize card checks in exchange for concessions. This is now pretty much the only way that unions can do card checks, absent the employer committing very serious unfair labor practices per Gissel.

ii. Card check vs. election1. Against card check:

a. Card check is an open process, so employees can be subject to pressure

b. There can be misinformation without an organizing campaign. BUT, if we won't limit false employer speech because it is patronizing, we shouldn't limit card check speech for the same reason.

c. No single moment of decision; can't know for sure that over 50% desire unionization at a given time. Debate and critique over what moment is choice (point of signing or over course of campaign).

2. Pro card check:a. Eliminates Weiler's “window”/ limits employer

interventionb. Focuses on the process rather than on the moment of

decision.3. Third choice?

a. Increase sanctions for unfair labor practices?b. Make elections speedier

c. NLRB v. Gissel Packing Co. , 395 U.S. 575 (1969) : In 3 cases, unions demanded recognition based on the authorization cards. The 3 employers refused to bargain on the ground that the authorization cards were inherently unreliable indicators of employee desires and then engaged in antiunion campaigns resulting in numerous ULPs. In 2 cases, elections were not held and in the 3rd, employer won election. NLRB: Board ordered employer to bargain w/ union. The cards were a sufficient demonstration that the employees favored the union and the employer refused to recognize the union in bad faith rather than any doubt of employee support (employer wanted to buy time to dissipate union’s majority status).


i. COA: The companies could not be forced to bargain unless 1) there was no question about a union's majority status, or the employer's unfair labor practices were so extensive that a bargaining order was the only available Board remedy irrespective of a card majority.

ii. Held: An employer need not have a good faith doubt as to the results of an election to request one. Under § 9(c)(1)(B), employer can refuse to bargain with a union claiming representative status based on authorization cards and request an NLRB election. However, if an employer engaged in serious ULPs likely to destroy the union majority and seriously impede the election, it will be ordered to bargain based on union authorization cards signed by a majority of employees provided the “cards state their purpose on their face.”

iii. Court also rejects the employer’s argument that authorization cards are inherently unreliable- as the same pressures face employees during elections.

d. Linden Lumber Div., Summer & Co. v. NLRB , 419 U.S. 301 (1974) : The union obtained authorization cards from a majority of employees and demanded recognition as the collective bargaining representative. Employer doubted the union's majority status, so union petitioned for an election. However, the employer would not abide by the election because it then claimed that the union's campaign had been improperly assisted by supervisors. The union renewed its demand for recognition, and the employer again declined. The union filed a ULP charge against the employer for its failure to bargain. Board: Linden did not commit ULP by refusing to accept majority status from the authorization cards. COA reversed, finding that if the employer had doubts about the union's majority status, it should have petitioned for an election. Held: Employer did not engage in an unfair labor practice by refusing to bargain. Issue is whether the burden should have been on the employer or on the union to ask for an election.

i. Rule: If an employer is not guilty of ULPs interfering with an election, it need not recognize or bargain with the union based on showing of majority support. If employer refuses to bargain, union has the burden of requesting an election with the NLRB.

1. Its too hard to figure out whether an employer is acting in good faith

2. So now employer can just ignore a presentation of majority support/ doesn’t need to recognize union based on cards alone.

3. DIFFERENT FROM GISELL- UNION, NOT EMPLOYER HAS BURDEN TO REQUEST ELECTION

ii. Dissent: §8(a)(5) and §9(a) don’t specify that there needs to be an election; instead they seem to impose a duty on an employer to bargain whenever the union presents convincing evidence of majority support. Employer has option, not obligation to request election- if employer refuses to bargain or request election, it will risk committing ULP.

e. Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp. , 961

F.2d 1464 (9th Cir. 1992) : HERE urged San Francisco agency not to pick


Marriott for a hotel project because Marriot was anti-union. Marriot and union agreed that union would withdraw its opposition to the project if Marriot made certain concessions. Marriot agreed to: (1) give first preference in filling job vacancies to employees picked by Local 2, (2) accept use of authorization cards to determine union representation, (3) employer statement neutrality clause. Marriot violated agreement to give preference to the union’s picks for vacancies. Union sued to enforce agreement under §301(a) of LMRA. District Court: SJ to Marriot on job preference clause because too vague. Court did not rule on other issues.

i. Card check clause: While the general rule is the NLRB should determine representational issues, parties can determine representational issues contractually and have their agreement enforced by a court. Distinguish Ketchikan Pulp, which required a specific union to represent employees at all future operations and deprived employees the right to choose their union. Here, the union only becomes the bargaining agent through a showing of majority support.

1. Caveat: Parties must have determined representational issues in a manner that is consistent with federal labor policy

2. Under Taft Hartley Act, disputes over labor-management contracts can be brought in federal court.

3. Policy: Card checks will reduce the “window” described by Weiler and enhance employee choice. BUT, it also favors unions that already have political power over other unions who cannot reach this type of agreement.

ii. Employer neutrality: District court can enforce the agreement regarding employer neutrality as it does not require the court to determine representational issues. This does not contravene labor policy.

f. Brooks v. NLRB , 348 U.S. 96 (1954) : Week after election and day before certification, employer received letter signed by 9/12 employees stating that majority were not in favor of union as their bargaining agent. Employer refused to bargain w/ union. Board: Employer committed ULP. COA enforced Board order. Held: Under §9(c)(3), it is an unfair labor practice for an employer to refuse to bargain within one year of an election.

i. Rule: After a “reasonable period” of time, loss of majority support can be questioned by (1) employer refusal to bargain or (2) petition by a rival union for a new election, (3) employer or employee petition for new election.

ii. Rule: If union lost the initial election, a second election could be conducted within that year.

iii. Rationale: 1. Election is a solemn and costly occasion. Furthermore, union needs

sufficient time to carry out its duties and shouldn’t be under pressure to produce instant results.

2. Not conducive to industrial peace for employer to stop bargaining each time an employee produces evidence of lack of majority support. Balance employee choice v. industrial peace.


g. Dana Corporation (“Dana I”) , 351 NLRB No. 28 (2004) : Metaldyne and Dana Corps entered into neutrality and card check agreements with UAW. Employers recognized union after card checks revealed majority support. Shortly after recognition, employees file petitions for decertification. Decertification petition- petition for election to get rid of union. NLRB: Dismisses petitions on basis of recognition bar doctrine- once the employees select a union, that bars rival petitions or decertification for a reasonable amount of time (generally up to 3 years). Held: Employee petition dismissals affirmed, but new rule announced.

i. New Rule: Court will modify the recognition-bar doctrine so that no election bar will be imposed after a card-based recognition unless: (1) employees in the unit receive notice of the recognition, and, within 45 days, their right to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid decertification petition supported by 30% of the unit employees or more is filed, the petition will be processed. Election Bar following Voluntary Recognition if employees get notice that they have 45 days to petition and 45 days elapse.

ii. The petition may include employee signatures obtained before or after recognition. The same applies to voluntary recognition. This is because card checks are inherently less reliable than secret-ballot elections, and our goal is to protect employee free choice. If both conditions are satisfied, the recognized union's majority status will be irrebuttably presumed for a reasonable period of time to enable the parties to engage in negotiations for a first collective-bargaining agreement. Under the contract-bar doctrine, any agreement reached during this 45-day window period will further bar an electoral challenge for up to 3 years depending on the contract term, once the window period elapses without the filing of a decertification or rival union petition

iii. Policy: Court sees itself as improving employee choice.h. Shaw’s Supermarkets , 343 NLRB No. 105, 2004 NLRB LEXIS 700 (2004) :

Union invoked after-acquired store clause to employer’s new store, employer refused to bargain. Clause stated that employer will apply the contract when a majority of employees have authorized the union to represent them. Held: Employer petition should not be dismissed because it is not clear that employer waived its right to a Board election.

i. After-acquired clause did not say how status would be determined – does not foreclose employer from using Board processes to resolve such issues

ii. We should be cautious about inferring a waiver of Board processesiii. If employer petition were dismissed, issues would be resolved in

arbitration. General rule: Board does not defer representation case issues to arbitration.

iv. Considering such a waiver only one of the employer and not one of the union imputes a question of mutuality and consideration


v. Dissent: Kroger establishes the rule that an employer waives its right to an election by agreeing to an additional stores clause. Furthermore, this does not necessarily mean union has waived its right to seek election

i. The “Employee Free Choice Act” : Permits unions to become bargaining representatives through majority card authorizations rather than through elections. If a union comes forth with a majority of cards, no election, just certification by the Board.

i. The drafters here agree with Weiler.ii. BUT, employer might respond by just having anti-union campaign on

ongoing basis. However, this is expensive to keep up with much intensity; most acute forms of intervention (like firing) are unlikely to happen.

I. Privately Negotiated Processes for Union Organizing Private agreements change the rules...

a. Agreement between Catholic Healthcare West and the Service Employees International Union :

i. Includes a plan for joint legislative and policy initiatives to improve healthcare.

ii. Labor relations accord: Will work together before seeking third parties, resolve local differences at the local level, will not encourage third parties to engage in acts contrary to the agreement.

iii. Recognition: Will be done by election. Also sets up union and management rights during union drive and ballot question.

iv. Provides for arbitration of disputes.b. Verizon Information Systems , 335 NLRB 558 (2001) : Employer and union

reached agreement re: neutrality & card check recognition after the union contract had expired. Agreement had an arbitration provision for disputes. There was an issue as to the bargaining unit, which had been scheduled for arbitration, but before the arbitration, the union requested recognition based on card checks, or in the alternative, to petition for an election. The union filed the petition when the employer did not recognize the union. The employer requested that the NLRB dismiss the petition on the basis that the parties had agreed on the arbitration procedure for handling the card checks. The Regional Director did not dismiss on the basis that the NLRB does not defer to arbitration in representation proceedings involving unit scope issues. Held: Petition must be dismissed because the agreement bars the filing of the election petition.

i. National labor policy favors the honoring of voluntary agreements between the parties, so the Board will enforce such agreements, including agreements that address union representation. This seems to be overruled by Shaw’s Supermarkets but the distinction is that here, the current employees are being represented by the same union; unlike in Shaws where new employees were to be governed by a prior union contract.

ii. Estoppel issue: union cannot reap the benefits of the contract, while taking advantage of the downsides

iii. Concurrence: Whether and to what extent the Board should defer to an arbitrator's decision is an issue not squarely posed here.

iv. Dissent: Waivers of statutory rights are not to be lightly inferred, but


instead must be clear and unmistakable. There was no clear and unmistakable waiver here.

c. Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp. , 961

F.2d 1464, 1469-70 (9th Cir. 1992) (“The ‘Employer Neutrality’ Clause”) : Enforcement of the employer speech neutrality clause raises no representational issues. District court is only not allowed to: (1) designate an exclusive bargaining agent or (2) identify an appropriate collective bargaining unit (Ketchikan). In Facetglas, Inc., district court was allowed to enforce employer neutrality clause. Enforcing employer neutrality clause does not seem to contravene existing federal policy.

d. SEIU v. St. Vincent Medical Center , 344 F.3d 977 (9th Cir. 2003) : The NLRB held an election, and the union lost. The union then claimed that the employer violated various provisions of an agreement that restricted what the employer could do during the organizing campaign. Pursuant to the agreement, the union sought to arbitrate these violations. When the employer refused to arbitrate, the union filed a complaint with the district court to compel arbitration. The district court granted employer’s motion to dismiss on the grounds that the union's complaint was on a purely representational matter, so the court lacked jurisdiction. Held: The dispute is primarily contractual rather than representational, so the district court has jurisdiction under §301 of LMRA.

i. LMRA states: “Suits for violation of contracts between an employer and a labor organization...may be brought in any district court.”

ii. The fact that the NLRB conducted the election does not prevent the district court from compelling arbitration. It’s not true, as employer contends, that all post-election disputes are representational issues under primary jurisdiction of NLRB. Test: whether the major issues to be decided can be characterized as primarily representational or primarily contractual. (Pace)

e. Chamber of Commerce v. Lockyer , 422 F.3d 973 (9th Cir. Sept. 6, 2005) : California AB 1889 bars employers from spending state funds to “assist, promote, or deter union organizing.” When there is co-mingling of funds, the state presumes that state funds were used. Distinguish St Vincent which was a voluntary waiver; this is a state law taking away employer ability to speak against unionization. Held: NLRA preempts AB 1889 because it significantly undermines employers' speech rights, and it conflicts with employers' rights under the NLRA.

i. According to NLRA, non-coercive employer speech is explicitly permitted. Additionally, the guaranty of freedom of speech and assembly to the employer and to the union goes to the heart of collective bargaining law. Additionally, the NLRA is a comprehensive scheme governing labor relations –an activity not punishable by the Act is the equivalent of protecting the activity.

ii. Garmon preemption: Garmon preemption exists to uphold national labor policy and to vindicate Congress's decision to entrust administration of labor policy to the NLRB. The CA statute impedes rights granted by


federal law, and in doing so, impedes the ability of the NLRB to uphold its election speech rules and administer free and fair elections. Garmon preemption is focused on avoiding the potential conflict of two law-enforcing authorities. There are three forms of Garmon preemption: 1) the conduct is actually protected or prohibited by the NLRA, 2) the conduct is arguably prohibited by the NLRA, and 3) the conduct is arguably protected by the NLRA. Here, the §8(c) Act actually protects employer speech rights, the strongest form of Garmon preemption.

iii. Thus, Machinists, not Garmon preemption applies. Employer speech is unregulated by the NLRA; not actually “protected.” Under Machinists preemption, states are prohibited from imposing additional restrictions on economic weapons of self-help such as strikes or lockouts.

f. Brylane, L.P. , 338 NLRB 538 (2002) : Employer is petitioning for an election. Union opposes the election on the grounds that no question of representation exists, since the union did not request recognition. Union denies employer’s claim that union requested recognition by stating it had more than 50% authorization cards. Held: There is no evidence that union requested recognition.

i. *Concurrence: Dissent claims that the union's request for a neutrality and card check agreement is unlawful under §302 of the Landrum Griffin Act because such an agreement is a “thing of value,” § 302 is aimed at criminal bribery and extortion. It is not aimed that preventing parties from reaching any kind of agreement.

ii. Dissent: Although § 302 is not an issue before the Board, this issue comes up in the case and is a problem because the agreement is a “thing of value.”

g. Patterson v. Heartland Industrial Partners, LLP , 428 F. Supp. 2d 714 (N.D. Ohio 2006) : The plaintiffs, employees at a company where there is no union representation, challenge cooperative agreements between their employer and a union, arguing that the union is giving away too many of their rights and possible benefits to secure information and access for an organizing campaign. In particular, the union and employer agreed to determine representation by card check. The defendant employer argues that the cooperative agreements (AKA neutrality agreements) are essential to permit fair access to unions in their organizing efforts and to avoid the combative environment that often accompanies such efforts. In return, the employer is getting a guarantee of no strikes. The defendant union states the cooperative agreements are necessary for successful organizing. The organizing drive failed. Held: Neutrality contract is not a thing of value in violation of §302.

i. Standing: There is standing for the injuries sustained during the plaintiff's resistance of the organizing drive. To have standing, the Plaintiff must show injury in fact that is concrete and particularized and actual, a causal relationship between the injury and the challenged conduct, and a likelihood that the injury will be redressed by a favorable decision. Defendants claim plaintiffs suffered no injury because the organizing drive failed. While the Plaintiffs will not be injured via working conditions, they may have sustained injuries arising from their resistance


to the organizing drive sufficient for standing to exist. 1. Possibility of harm also by the employer not delivering

information pursuant to the agreement?ii. Alleged Violations of the Labor Management Relations Act: Plaintiffs

have not demonstrated facts sufficient to support a violation of this act. Although the Plaintiff contends that the Defendants violated the portion of the act stating that parties may not “pay, lend, or deliver...any money or other thing of value,” the fact alone that the agreement provided benefits to both parties does not make it a payment or delivery of some benefit.

III. THE 21ST CENTURY WORKFORCE AND NEW CHALLENGES TO UNION ORGANIZING

Among the profound changes faced by unions and management since the Act’s passage is the dramatic recomposition of the American workforce. In particular, the growing number of undocumented immigrant workers in the U.S. and the increasing use of subcontracted and temporary workers present both opportunities and challenges for union organizing. In the next several classes we examine how American labor law is responding to the reshaping of the American workforce.

A. Undocumented Workers and the Intersection of Labor and Immigration Law a. Background on undocumented workers

i. Definitions1. Undocumented workers: circumscribed conception of the worker’s

violation that they violated immigration laws2. Illegal aliens: someone whose status under the immigration laws

makes them illegal for other benefits. ii. Themes

1. Immigration law and labor law conflict . Courts need to figure out how to reconcile conflicting regulatory systems. There is no explicit commend from Congress to favor one over the other.

2. Court is prioritizing or privileging immigration law over labor law without much justification.

3. Labor law and labor unions’ relationship to immigration policy and politics. Immigration status is a workplace issues (similar to working conditions). Unions defended nonunion employees who engaged in immigration marches. Notion that firing these employees were an ULP because immigration marches are protected concerted activity.

iii. History1. Under federal immigration regulation that began in the 1880s,

employers were not prohibited from hiring illegal immigrants.2. Since 1980s, the IRCA makes it illegal for employee to use

fraudulent documents to obtain employment and makes it illegal for employer to knowingly hire an undocumented worker.

b. Sure-Tan, Inc. v. NLRB , 467 U.S. 883 (1984) : Employer reported illegal status of workers because they were involved with the union. Workers accepted


voluntary return to Mexico. i. Board: It was an unlawful discharge to report workers to the INS because

they participated in union activity. The employee s are eligible for conventional reinstatement and backpay, which means that backpay awards should be based on the determination whether the employees had been available for work.

ii. COA: Modifies remedy and says that employees are only eligible for backpay when they are legally entitled to be in the U.S. But, COA recommends Board consider awarding a minimum amount of backpay to reprimand employers. Further orders the reinstatement order to be written in Spanish.

iii. SCOTUS Holding: COA remedy would cause Board to exceed its powers. Board cannot award punitive damages; only actual damages. At the Compliance phase, the Board must take immigration into account and the federal policy of deterring unauthorized immigration. To compute backpay, employees must be deemed eligible for work during any period in which they are not lawfully entitled to be present and employed in the U.S.

1. Thus, once a worker is deported, they have no remedy.iv. Reasoning:

1. Illegal immigrants fall within the meaning of §2(3) which is written broadly and applies to any employee.

a. Deflationary wage pressure on legally authorized workers would occur if undocumented workers are not protected. Illegal workers would be forced to take jobs on substandard terms.

b. Excluding undocumented workers would be bad for unions as there would be a class of workers without a stake in the CB process; thereby eroding unity & effectiveness of CB

i. BUT, illegal workers may have shorter term horizons and different incentives

c. INA: Congress did not enact provisions making it unlawful to hire undocumented workers. Furthermore, including illegal aliens within definition of employee reduces incentives to hire illegal aliens.

v. Dissent opinion implies a strong iteration of the illegal alien theory. These people violated a law, so how could Congress desire to vest them with protections of the immigration statutes.

c. In 1986, IRCA passed, making it illegal for an employer to knowingly hire undocumented workers and for employees to use fraudulent ID to get work. After IRCA, Acra case determined that primary purpose of IRCA is to make it more difficult to employer undocumented workers and to punish employers who offer jobs to these workers. Precluding NLRA remedies would contravene this purpose.

d. Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137 (2002) : Hoffman laid of Castro and other employees who distributed union authorization cards. At ULP hearing, Castro admits he used fraudulent papers to obtain the job.


i. Board: Ordered backpay from the date Castro was fired until the date the employer learned of Castro’s illegal status. Sanction of backpay is necessary to effectuate purpose of the act.

ii. SCOTUS Holding: Sure Tan no longer applies to these cases because of the change of the legal landscape. No backpay should be awarded to undocumented workers. Additional remedy is that employer must post a notice that there is a cease & desist order that they stop engaging in ULP behavior.

iii. Reasoning:1. Court has consistently set aside awards of reinstatement and

backpay for employees engaged in illegal conduct. Board’s remedy may be required to yield to the federal statute IRCA. See Southern Steamships where employer committed ULP then workers engaged in mutiny on ship in violation of labor law. Workers here were not entitled to remedy.

a. BUT, Castro was not fired because of illegal conduct, but because of union activities.

2. Awarding backpay to undocumented workers trivializes the past immigration law violation and condones future violations.

iv. Dissent: Awarding backpay won’t really encourage illegal immigrants. If undocumented workers are not protected by NLRA, employer will have more incentive to hire them. It would be perverse to foreclose a backpay order for an employer who knew of employee’s undocumented status.

v. Policy: 1. Hoffman created the wrong incentives—there are no increased

incentives for immigrants to want to work in the U.S., but there is more incentive for employer to hire them.

2. Undocumented workers/illegal aliens distinction : a contract entered into with an illegal alien is contract against the law so the contract is unenforceable.

e. Agri-Processor Co. v. NLRB , 2008 U.S. App. LEXIS 101 (D.C. Cir. 2008) : Workers vote to unionize. Employer finds that most of the employee S.S. #s who voted for the union are nonexistent or pertain to other people. Employer refused to bargain on the grounds that the election was invalid and the bargaining unit was improper because undocumented aliens could not belong to the same unit as legal workers as undocumented workers are not employees. Held: Undocumented workers are employees and are protected by the NLRA.

i. NLRA defines employee expansively (Sure-Tan). 1. BUT, an employer who fires an illegal immigrant is subject to no

sanction.ii. Board has broad authority to determine bargaining units. Units are based

on “shared community of interest”- workers have shared interests. iii. Dissent: Undocumented immigrants are not employees; Sure-Tan relies

on immigration law at that time. iv. Policy:

1. Presence of undocumented workers may make it more difficult to


unionize whether or not they are protected by the NLRA2. Whether they are an employee doesn’t matter anyway since there

are no remedies (no reinstatement, no backpay, no protection). We should still care if undocumented workers are employees for voting purposes and the composition of the bargaining unit.

3. This decision will cause employers to search all employees immigration statuses and slow down unionization

4. Illegal alien distinction : people who violate immigration laws are outsiders. Inconsistent to have a law that protects a class of workers but can be violated with impunity with respect to them.

f. Tuv Taam Corp ., 340 NLRB No. 86 (2003) : Kosher food business in Brooklyn engages in number of ULPs. Employees strike. Board: Orders traditional remedies- cease & desist, reinstatement and backpay. Employer refuses remedy under Hoffman on grounds that some employees are undocumented. Held: Board is not foreclosed by Hoffman from awarding a backpay remedy.

i. Rule: Whether an individual is undocumented or not under Hoffman is irrelevant to ULP liability at the Merits Phase. This is only relevant at the Compliance phase. Immigration status here has no bearing on whether the employer committed ULP.

ii. At the Compliance Phase, the Board still has to prove how much backpay is owed regardless of immigration status. Then the employer can put forth evidence that the employee is undocumented and not entitled to backpay under Hoffman.

iii. Policy1. Creates possibility for settlement of ULP cases since employer has

to litigate the case through the merits phase anyway (costly2. Creates incentives for employers not to violate the act to begin

withg. Montero v. INS , 124 F.3d 381 (2d Cir. 1987) : Montero was an illegal immigrant

involved in union activity. UNITE wins the election. Employer’s attorney tipped INS about illegal employees who voted for the union, but not the employees who voted against the union (INS fined them $23,000 for shielding these illegal aliens). Held: Interrogation of Montero by INS and Montero’s subsequent voluntary deportation upheld.

i. No court has ever interpreted IRCA to be constrained in its ability to cause undocumented aliens to depart once their presence has been discovered. To the contrary, application of prospective labor law remedies to undocumented aliens depends on whether the alien is permitted by the INS to remain in the U.S.

ii. Rule: Apply immigration law first before conducting labor law inquiry.1. To not conduct immigration law inquiry first, you would be

condoning future immigration law violationsiii. If employer had reasonable basis for believing employees were authorized,

there would be no IRCA sanction. iv. Policy


1. Prioritizing IRCA over NLRA eviscerates the statute. Not deporting these workers does not completely trump the immigration statutes (employers still doing illegal things)

2. If don’t include undocumented immigrants in definition of employee may result in no one being in a union

h. INS Operating Instruction 287.3a (reprinted in 74 Interpreter Releases 199 (1997)): Its purpose is so INS doesn’t become a tool for employers. When information is received from any source that creates a suspicion that INS (now ICE) enforcement action may involve a tip from a labor dispute, the INS must determine whether a labor dispute is involved. This is to protect the INS service agents from getting involved in a labor dispute. Making INS back of their jobs during labor disputes is permissible because it helps promote the goals of the NLRA. Instruction seeks to balance safety of INS officers with the ability to enforce the employer sanctions provisions of the law during a suspected labor disputes

i. In re Herrera-Priego , U.S. D.O.J. EOIR (July 10, 2003) : Union began to pressure the employer to pay overtime to the workers. Employer attended some of the union meetings. There was an IRS raid based on a tip of the employer which resulted in the arrest of several employees. Respondents claim that the INS did not follow the Operating Instruction. The INS did not try to determine whether there was a labor dispute in progress and did not seek permission from the relevant officers before performing a raid in the context of a labor dispute. INS argues that (1) the OI doesn’t actually prohibit the INS from enforcing immigration activity during an employment dispute and (2) the OI doesn’t have the force of law. Held: INS violated their own rule which interferes with due process. INS must terminate the immigration proceedings.

i. Accardi doctrine: a federal agency must follow its own regulations if failure to do so would result in violation of due process.

ii. According to expert, purpose of the O.I. was to make sure that the INS isn’t used by employers to take away the rights of employees under the important labor laws. And it prevents the service form being manipulated by employers or employees in the context of a labor dispute.

j. Rivera v. Nibco, Inc., 364 F.3d 1057 (9th Cir. 2004) : *How one court has dealt with the impact of immigration status on Title 7 law* Discovery dispute over NIBCO asking employee Rivera where she was born at a deposition. Rivera files a motion to suppress questions about immigration status. Held: Discovery as to immigration status is not ordered.

i. Balancing test : particularized harm of discovery as to this issue outweighs NIBCO’s interest in obtaining this information at this stage of the proceeding

1. Inquiring about immigration status will chill workers willingness to pursue Title VII rights

2. Title VII is different than NLRA. Title VII relies upon private cause of action. If you deter private enforcement under Title VII, which allowing an inquiry into immigration status would do, you


would severely undermine Title VII. If you deter private enforcement under NLRB, it’s not as great a problem

3. According to 9th Cir., Title VII depends on private enforcement by “private employees general” so need to be more careful about chilling employee’s rights under this statute.

ii. Punitive Damages : NLRA does not allow for punitive damages. Title VII does include punitive remedies to discourage employers from engaging in discriminatory acts. These are laws we want to enforce even if the employees are not deserving.

iii. Court v. Agency : Courts can balance immigration law against Title VII while NLRB cannot balance NRLA against immigration law.

iv. Alternative for employer: bifurcated liability and damages phasev. Different approaches in immigration/labor law

1. Montero clearly privileged immigration law over labor law2. Hoffman did poor job harmonizing immigration and labor law3. Rivera demonstrates balancing of labor law over immigration

k. *What is the appropriate balance between Labor Law and Politics* Monica Davey, For Immigrants and Business, Rift on Protests, NYT, April 15, 2006 at A5 : When unions engage in protests about immigration labor policy, consider 3 inquiries:

i. Who controls subject matter of the protected labor activity?1. That employer; Another employer; Judicial body; U.S. Congress

ii. Tailoring: Closeness of the relationship between the subject matter of the protest and the working conditions of the employees involved in the protest

iii. What is the form of protest in which the employees engaged?1. Letter writing; Striking

l. Kaiser Engineers v. NLRB , 538 F.2d 1379 (9th Cir. 1976) : *Whether employees are protesting over something employer can control* Kaiser’s competitors are petitioning Congress to relax the restrictions against hiring foreign engineers. Civil Engineering Society sends a letter to Congress on behalf of “engineers at Kaiser.” Kaiser thinks the letter is embarrassing because they think it could be construed as Kaiser discriminating against foreign engineers. Allen resigns after pressure from Kaiser. Held: Letter protesting a new law regarding the hiring of foreign engineers when the company is engaged in hiring engineers is concerted activity protected by §7. Employer who discharges a worker for engaging in this type of protected activity is guilty of unfair labor practice.

i. §7: Employees are protected in some kinds of activities beyond the organization and operation of unions. They have the right to form unions AND engage in other activities for the mutual aid or protection.

ii. Rule: The activity must be Concerted AND for Mutual Aid and protection.

1. National immigration policy could affect the employees’ job security


iii. Dissent: §7 protects concerted activity by employees affecting the way their employer treats them. It should be something the employer can control.

iv. Majority holds that NLRA has everything to do with political activity not directed to employer, but to Congress.

m. Eastex, Inc. v. NLRB , 437 U.S. 556 (1978) : Employer cannot prohibit employees from handing out a newsletter during nonwork time and in nonworking areas of the property. Employees wanted to distribute a newsletter at work that call for employees to take political action writing representatives about a right to work law and vote for supporters of minimum wage increase. on work premises. Employers bans distribution of the newsletter at work so union files unfair labor practice charge. Held: Even though the employees already had a “right to work” amendment in place and were already making more than minimum wage, there were a close enough connection to the employees status as employees. Setting a minimum wage floor and making it harder to repeal “right to work” law could benefit the employees.

i. Definition of employees . Not limited to employees and their immediate employer; just to anybody’s employee/employer relationship

ii. Congress passed NLRA with the knowledge that labor’s cause was often advanced on fronts other than that specific workplace

iii. Rule: There must be a relationship between employees’ interests as employees and the political activity (i.e. campaign to save whales have no relation)

1. This may harm protests to help immigrant workers2. If employer does not control the subject matter of the protest, this

concerted activity may not be protectedn. NLRB v. Washington Aluminum Co. , 370 U.S. 9 (1962) : Employees kept

complaining about the shop being too cold. One day, 7/8 employees left work before the morning buzzer. Board: the walkout was concerted activity to protest failure of employer to provide heat.

i. COA: Section 10(c) proviso- Board can’t force an employer to reinstate or give backpay to an employee that has been fired for cause. Because workers walked out and didn’t give employer a chance to negotiate, they violated a plant rule.

ii. Held: The walkout grew out of a “labor dispute” within the plain meaning of § 2(9).

iii. Engaging in §7 activity which allows workers to engage in concerted activity for mutual aid and protection cannot constitute just cause

o. Reliable Maintenance, NLRB Advice Memorandum, Case 18-CA-18119 (Oct. 31, 2006) : *Whether leaving work to engage in protests is protected* Employee did not show up to work to engage in immigration demonstration and was fired. Held: Employee lawfully terminated; missing work without permission to participate in §7 activity is not protected. Economic pressure (i.e. a protest march) for a subject matter outside the employer’s control is not protected (Eastex fn 18).

i. Best argument a union could use to protect workers in these situations


1. Political participation reasons : desirable to have people participate in these demonstrations but they spend a lot of time at work. If don’t free them from work obligations, they can’t participate in such activity

2. Employer has much more power and funds to organize in the political sphere. The political sphere is also an arena of employer/employee confrontation, no just at the bargaining table. Idea of labor law is to equalize strength of employers and employees so have to do this in the political sphere as well.

3. Arguments against permitting this:a. Workplace will grind to a halt. b. Difficult line to draw what type of protest is acceptable. c. Would encourage too much political participation.

ii. Constitutional issues1. Employers have to pay workers when they engage in this type of

political activitya. 1st amdt: Forced speech on part of employers—employer

may be seen as endorsing certain speech of their employeesb. 5th amdt: forcing employers to spend money on employees

who are not working violates Takings Clause by making employers to expend money without just compensation. Would also compel employers to subsidize political employee activity for things over which employer has no control.

B. Non-Traditional Workers (temporary workers, graduate & research assistants)a. Uniting theme between (Hoffman, Oakwood, Brown, Brevard) 2002-2004

i. Consequences of these decisions is to protect undocumented employees, although they are not legal, but no remedies. Temps, graduate students, and disabled employees in rehabilitative situations are not covered by the Act. If update the NLRA from the 1930s into the future, NLRB would add these groups into coverage under NLRA.

ii. Institutional competence. If the NLRA leaves workers with no effective remedy, the NLRB says that this is a question best left to Congress

1. BUT, NLRB in Brevard wrote a new exception into Section 2(3)’s definition and exemptions of employees. This is Congress’ job!

iii. Workforce is different today. Today, when there are undocumented workers, & temps, we have been trying to keep the act alive and dynamic by adding new categories of workers.

b. *Bargaining Unit determination when some workers are temps* M.B. Sturgis, Inc., 331 NLRB 1298 (2000) : User employer determined wages, benefits of the temp employees and the temp employees had had essentially the same hours as their permanent employees and do the same type of work. Temp employees are joint employees of Sturgis and Interim (supplier). Regional Director finds appropriate a bargaining unit that includes all the employees of Sturgis, except the temps. Held: A single employer bargaining unit is appropriate if all work is being


performed by the same employer in basically undifferentiated ways. OVERRULED BY OAKWOOD

i. Greenhoot Rule: Employer consent is required for the creation of true multiemployer units involving separate user employees.

ii. New Rule: A unit composed of employees who are jointly employed by a user employer and supplier employer is permissible without the consent of the employers.

iii. §9(b): Board has to decide in every case whether the unit appropriate for collective bargaining is the employer unit, plant unit, craft unit, or some subdivision thereof

1. Test: Must determine whether the employees have similar “community of interest” to be in the same unit.

iv. Policy: this may benefit employer who thinks temps may be antiunion and wants to include them in the definition of the bargaining unit.

c. Oakwood Care Center , 343 NLRB No. 76, 2004 NLRB LEXIS 673 (2004) : Same set up as Sturgis case but takes place under the Bush administration. Regional Director stated that all employees can be put in one unit without joint employers consent. Board: User & Supplier employees constitutes multiemployer bargaining because they have different employers (permanent employees’ employer is A, while temp employees’ employer is A +B). So, both employers must consent to bargaining with the union

i. Policy: 1. An anti-union employer can hire a lot of temps to work alongside

permanent employees to divide the workforce sentiments2. Temp agency/permanent employer bargaining will cause problems

since the permanent employees have no relationship to temp agency

3. BUT, it is not fatal to CB to have temp agency at bargaining tabled. Brown University , 342 NLRB No. 42 (2004) : TAs and RAs must be students of

Brown University. They get money from the university but unlike the fellows (don’t do research or teach but get same funding), they teach or do research. School makes argument that the funding is similar to financial aid to the students. Held: TAs and RAs are not employees under the NLRA.

i. Test: What are these people primarily? TAs and RAs are primarily students.

ii. Reasoning:1. Difference between student-professor relationship and employee-

employer relationship. a. Differences between the world of academia and the

economic world. Academic relationships are based on mutual interests and economic relationships are more antagonistic.

b. Some TAs are required to be TAs2. Academic interests are about the individuals while collective

bargaining is about the collective group. This idea is in conflict.


3. Academic freedom: There are differences between values of academic realm vs. values of economic realm (not purely profit)

iii. Dissent: §2(3) says nothing about an exclusion for employees who are primarily something else

1. CB of TAs and RAs at NYU was authorized and turned out OKiv. Policy

1. Board could have permitted bargaining as to some topics (scalpel vs. axe approach)

2. Could make distinction between TA/Administration rather than TA/faculty

3. Professors also care about academic freedom & learning- does this mean they can’t be organized

4. Perhaps class issues are driving the Board; the idea that unions are for blue collar workers. Perhaps they have an idealistic conception of what universities are.

5. If they are engaging in academic productive behavior, they should be entitled to a union

e. Brevard Achievement Center , 342 NLRB 982 (2004) : Under the Javitz-Wagner Act, a company secured federal contract if 70% of their work is done by individuals with severe disabilities. Contractor meets this criteria; workers want to organize. Differences between their employment and a standard employment relationship—they are disciplined less and not disciplined if related to their disability, one on one assistance with trainers, if mess up they assign them to a different task instead of firing them, not the same quality or time requirements. Regular employees are subject to a traditional progressive disciplinary procedure. Held: The disabled workers are not “employees” within §2(3) of the Act.

i. Test: Is the employment relationship primarily rehabilitative or primarily economic?

1. BUT, §2(3) has a broad definition of “employee” and does not distinguish between primarily economic or rehabilitative.

ii. The Act only applies to economic relationships because those are the relationships that threaten industrial strife and to which the Act applies. If the relationships are not primarily economic, it will not be an industrial strife kind of situation and so the Act does not apply.

1. BUT, in addition to industrial peace, another policy is employee choice. If the disabled ones aren’t covered, then that will affect the choice of the nondisabled employees.

iii. Dissent: 1. This undercuts the goal of the ADA to integrate disabled workers

into the workplace2. Paternalistic. The disabled employees were asking about

unionization which shows they don’t need to be protected from itiv. Policy:

1. ADA is a Congressional policy of full integration, so should we adhere to it when interpreting labor policy.


a. BUT, slippery slope, then labor law would need to consider immigration law, family law, and others.

IV. WORKPLACE ORGANIZATION AND LABOR-MANAGEMENT COOPERATION: FROM COMPANY UNIONS TO LABOR-MANAGEMENT COMMITTEES AND BEYOND

Labor law governs not only the processes by which unions awre formed and recognized, but also the types of “labor organizations” that workers are permitted to organize and the ways employers and unions may interact. Section 8(a)(2) of the NLRA broadly prohibits employers from dominating, assisting, or interfering with labor organizations. That section was passed to outlaw company unions common in the 1930s, but in more recent times § 8(a)(2) has been criticized for hindering union and employer experimentation with productive forms of workplace collaboration. For unions and employers today, the central § 8(a)(2) questions concern joint efforts to negotiate (before a representation vote) the contours of the collective bargaining agreement that would apply should employees choose to be represented by a union.

C. From Employer Domination to Labor-Management Committees? a. § 8(2) makes it a ULP for an employer to interfere with the domination or running

of any labor organization. Beginning in the 1980s and 1990s, as global economy increased competition on U.S. firms, it was evident that there is a need for increasing the competitiveness by increasing workers contributions to the running of the firm (i.e. employee participation schemes).

i. This empowers workers- §8(2) is an impediment.ii. §8(2) is good. Hinders employers from forming independent unions.

b. Two Themes of debatei. Free choice: If Act is supposed to protect employee choice, why protect

only 2 choices (union/no union)? Why not allow workers a full range of choices?

ii. Labor law preference for adversarial relations, or whether some forms of cooperation are permissible

c. NLRB v. Newport News Shipbuilding and Dry Dock, Co. , 308 U.S. 241 (1939): Employer implemented a plan of labor-management cooperation. It was modified in 1937 after passage of NLRA. Board thinks 2 provisions violate the NLRA: (1) Actions of the committee required approval of the company before they could be implemented and (2) Can change the form of the organization only if the company approved it. Also problematic that historically the organization was dominated by the employer. Held: Freedom for employees to choose the kind of labor organization they want can be impeded by the existence of a prior employer dominated organization so the organization must be eradicated.

i. It’s a problem that the employer has approval over the format of the employee organization

ii. Effect of organization existing for so long on employees cannot be wiped out unless eradicate the organization.

d. NLRB v. Streamway Div. of Scott & Fetzer Co. , 691 F.2d 288 (6th Cir. 1982): Employer-management committee’s goal is to integrate employees into the running of the firm. Consists of 8 employee representatives all elected by


employees on a rotating schedule set by employer, management personnel attends meetings, employer established and runs the committee. UAW twice tried to unionize Streamway’s employees and twice failed. Board: Employer violated §8(a)(1) by interrogating employees about their union sentiments (§8(a)(1): ULP to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in §7). Employer also violated §8(a)(2) with the company union by dominating and interfering with and giving support to the committee. Held: In plant representation committee was not a labor organization.

i. Test: Employer must be interfering with a labor organization within the meaning of the statute. Whether there is a labor organization is whether the labor organization exists to deal with employers with regard to conditions of work. There must be continuous contact between the committees and management. Mere discussions which happened here are not enough to constitute “dealing with.”

ii. Purpose of the act was to foster industrial peace. The adversarial model of labor relation is anachronistic. We need to encourage cooperation between labor & management.

iii. Policy: Fosters employee choice; employees today have a level of choice they didn’t have in 1930s when NLRA was enacted

e. Electromation, Inc ., 309 NLRB 990 (1992): Focus on Raudabaugh concurrencei. There are 3 critical components of a labor organization: 1) employees

must participate, 2) it must exist for the purpose, in whole or in part, of dealing with an employer, and 3) the subject of the dealing must be grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

ii. Most employee participation programs (EPPs) will meet this criteria. We'll need a legislative fix for them to not be labor organizations.

iii. Taft-Hartley has undermined the validity of Newport News. We are not in an adversarial model of labor relations after Tart-Hartley, we are in a cooperative ones. Tart Hartley guarantees workers the right to refrain from choosing union representatives.

iv. To accommodate at least some EPPs, labor organizations should be determined as follows: 1) the extent of the employer's involvement in the structure and operation of the committees, 2) whether the employees reasonably perceive the EPP as a substitute for full collective bargaining, 3) whether employees have been assured of their Section 7 right to choose to be represented by a traditional union, and 4) the employer's motives in establishing the EPP.

v. Policy1. NLRA should allow employees to choose an “in between” union

especially if the NLRA is committed to employee choice.2. Joint labor-management organizations are not a middle ground

between unionization and employee unions. Instead, they are a full-fledged “labor organization” that prohibits unionization and genuine worker power.


f. Crown Cork & Seal Co. , 334 NLRB 699 (2001) : Purpose of Sociotech system is to delegate to the employees substantial authority to operate the plant through their participation on numerous teams and boards. There are production teams (look at quality issues, attendance, training, safety, maintenance and discipline), self-managed work groups, and education review board (can change hours, layoff procedures, and all terms of employment). Committee decisions are reviewed by management team or plant manager, but management rarely overruled their decisions. Held: These are not labor organizations; they do not “deal with” employers regarding conditions of work.

i. Rule: To be a labor organization, the org must “deal with” management and there must be a bilateral mechanism with proposals by employee committee with some form of consideration by management.

ii. Employees were exercising managerial authority. They don’t deal with management, they are management.

iii. Policy1. Are workers being compensated for this involvement in

committees (more work/like manager)? BUT, perhaps they are being compensated by increased satisfaction derived from the job.

2. Theory of false consciousness: Employees acting not as employees but as management may subvert desire to unionize.

3. Another theory of false consciousness: think you have choice but you don’t—i.e., can’t change wages.

4. Paternalistic to take all choice off the table. iv. Parallel to preclusion of employer from granting benefits during a union

organizing campaign. 2 Theories:1. Labor management committees actually block the progression

toward unionization because they stifle the formation of a consciousness that you need to get a union. Affirmative bad that prevents workers from getting to unionization.

2. Labor-mgmt committees don’t do any of this, but they give workers just enough that they won’t want to go all the way to unionization. Similar to an employer giving a raise during a unionization campaign- workers may stop short of unionization.

3. Form of a union threat effectg. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and

Workplace Cooperation, 106 HARV. L. REV. 1381 (1993) : The Wagner Act was primarily cooperationist, not adversarial as most assume.

i. Two theories of labor law:1. Adversarial model: Interests between labor and management are

opposed.2. Cooperationism: Encourages working together. Have shared

interests. The way forward is to cooperate.ii. Barenberg: To achieve cooperation, need to even out power relations

through a union. Need genuine consent prior to cooperation. When managers just say you need to cooperate, that's disempowerment. But if workers develop equal power, then you can have real cooperation.


iii. Howe do you can productive efficiency under this model?1. Labor must feel trust towards management, take responsibility for

efficiency, and see interests as shared. But labor must see itself as sharing fairly in the economic fruits, which depends on the consent of the workforce coming from collective bargaining.

iv. But do we actually end up with co-equals? Employer still has final decisionmaking. An employer giving a raise during a union organizing campaign is the “golden fist within the iron glove”- can take it away.

v. Modern theories which make us see the Wagner Act as adversarial:1. Self interested rationalism: Views Wagner Act as product of self-

interested labor.2. Symbolic constructionism: Underscore the symbolic and

consciousness-shaping dimension of the Act's origin. 3. Wagner actually believed strongly in a more democratic

workplace. He did not want such hierarchical relations in the workplace. For Wagner, workplace cooperation required that labor feel trust toward management, take responsibility for productive efficiency, and recognize shared rather than adversarial interests.

D. The New Frontier: Pre-Recognition Bargaining by Unions and Managementa. Ways to see pre-recognition bargaining:

i. Allowing workers to know with greater precision what a yes vote means; facilitates informed employee choice

ii. Gives workers less choiceb. Right of participation: Unions and employers are negotiating before the election.

Depriving employees the right to contribute their own voices to the agreement that will govern their work lives.

c. International Ladies Garment Workers v. NLRB (Bernhard-Altman Texas Corp.) , 366 U.S. 731 (1961) : MOU signed by union & employer under pretenses that union had majority status. Later, Board found out that the union did not have majority status at the time of recognition. Held: The grant of exclusive representation here to a minority union violates the employees’ §7 rights.

i. §7 gives employees the right to bargain collectively with the representatives of their own choosing (majority will). Before recognizing this union before it enjoys majority support, the will of the majority binds the minority.

ii. Employer also violates §8(a)(2) by giving “other support” to the union because it gives that union a “marked advantage” over any other union in securing the rights of employees. Employer cannot tilt the scales in favor of one union over another.

1. Sweetheart union deals interfere with employee choice: Employer has incentive to pick a weak union

iii. Not enough that by the time the CB agreement is executed, the union is supported by the majority of employees. The CB agreement may have given the union a deceptive cloak of authority with which it could receive the union support.


1. BUT, what about card check and neutrality agreements. These are offered to all unions, not just one.

iv. Policy1. There are few unions strong enough to defend employees’ rights

and get in the door. Helping them would help workers. 2. On the other hand, sweetheart unions will not fight management.

d. Majestic Weaving Co. , 147 NLRB 859 (1964) : Union & employer discuss pay rates, wages, heart of CB agreement prior to any showing of majority support per agreement between employee and employer. Before contract is signed, the employer requests proof of majority status and union presents 27/36 employee cards. Held: Majority support that union had when contract was signed was an assisted majority and therefore violates §8(a)(2).

i. Management cooperation in the solicitation of cards is a flat violation of §8(a)(2).

1. May help management obtain sweetheart unionsii. Cannot negotiate with a union before it shows majority status

iii. Employer’s contract with that union is not a bar to bargaining with another union that demonstrates employee support.

iv. Counterargument: But, when union & mgmt negotiate prior to an organizing drive, the workers can vote yes or no based on what’s in the contract—gives employees greater choice.

e. Houston Division of Kroger Corp. , 219 NLRB 388 (1975): Employer has a CB agreement with 2 unions. In each agreement, employer has agreed: (1) If a new store opens, the union is to represent the employees at the new store and (2) the CB agreement that has already been negotiated is to apply to the workers at the new store. Employer refuses to accept the union at 2 new stores. Held: Refusal to bargain with the union as the exclusive bargaining rep of the new stores violated §8(a)(5).

i. “Additional store clauses” where new stores are part of the collective bargaining agreement are valid as long as the employees still have free choice and are not denied their say.

ii. Union had a card majority in the newly opened stores—that the contract did not require such showing does not make it invalid. Employer is merely waiving its right to demand an election.

iii. Distinguish Majestic Weaving (agreement negotiated before union is organized is illegal): In Kroger, the union agreement is part of a preexisting lawful relationship between those 2 parties after the union already represented the majority of a set of workers.

1. Majority Weaving - focus on employee choice & participation2. Kroger - focus on power of union

iv. Extending the CB to the new stores protects the workers at the original company as they will have enhanced power because anything they negotiate will be implemented storewide. If some stores are non-union, that would weaken the bargaining agreement of the workers because the employer can drive down benefits and play the workers off of each other.


Thus, workers interests may be best advanced when the power of the union is advanced.

v. BUT, under Bernard Altman: if employer recognizes a union prior to recognition, the employer could give the union a deceptive cloak of authority. Choice of union is skewed to this union instead of another.

f. Dana Corporation (“Dana II”) , 2005 NLRB LEXIS 174 : Dana and UAW entered into a friendly letter of agreement before UAW was the representative for the workers. UAW represented thousands of Dana employees at other plants but not at this St. Joseph plant. In letter of agreement, employer signed a neutrality agreement, agreed to provide union access to employees during the workday, and covered substantive terms and conditions of employment. Any negotiated agreement had to last at least 4 years; if no agreement reached by the parties it would have to be submitted to interest based arbitration. However, some mandatory subjects of bargaining, i.e. arbitration provisions are not addressed. Held: There was no employer recognition of UAW as the exclusive bargaining representative here.

i. No such thing as partial recognition of a unionii. Under Kroger, the prior CB agreement would be fully applied to the new

facilities. BUT, agreement reached here was not reached under conditions we trust.

iii. One way of protecting employee choice is through card check and neutrality agreements. To obtain this, union may have to trade some kind of victory on substantive terms.

1. OR, NLRA is dysfunctional-may require employees to give up participatory rights.

V. STATE AND LOCAL INTERVENTIONS For nearly a half-century, federal preemption of state laws that regulate union activity and labor-management relations has been a central tenet of American labor law. But with the increasing recognition of federal labor law’s limitations, there has been a concomitant interest in state and local attempts to innovate in the field. This section of the course examines the historical development of the labor preemption doctrine and then explores contemporary efforts to reform labor law through state and local legislation. We consider whether states can be productive laboratories for labor law innovation or whether state efforts to legislate in this area inevitably undermine the federal scheme governing labor relations.

A. Foundational Cases a. After Wagner Act, unions wanted a robust preemption regime under which

federal law would block state intervention (unlike the frequent state court injunctions prior to 1935)

b. San Diego Building Trades Council v. Garmon , 359 U.S. 236 (1959) : California court enjoined the union from picketing and awarded $1000 in damages to employer. Cal. court claimed that union violated §8(a)(2) by discouraging employees from fully working (partial strike). Held: Since the labor activity is arguably protected by §7 or prohibited by §8, the state’s activity is preempted.

i. There are 2 levels of preemption


1. When something is explicitly protected by § 7 or prohibited by § 8. If so, then due regard for federal enactment demands that the state yield. (Garmon)

2. When an activity is arguably subject to § 7 or arguably subject to § 8, the state has to yield. If anything comes close to the Act, the states have to back off. (Machinists)

a. Allowing the states to act in an area that is potentially subject to federal jurisdiction means there would be too much risk that it affects federal labor law

ii. Exception to Federal preemption: 1. If something is a peripheral concern to the federal law or deeply

rooted within local concern 2. If an activity is violent or involves imminent threat of violence

c. Lodge 76, Machinists v. Wisconsin Board , 427 U.S. 132 (1976): Employer demanded an increase in workweek ; union ordered workers to refuse to work overtime. Employer files an §8(a)(3) (refusal to bargain) with NLRB. Regional Director dismisses the charge on the ground that prohibiting overtime work by its union members does not appear to be in violation of the Act and was therefore not cognizable. Employer files another complaint with State Labor Board. State Labor Board says that the activity is not expressly permitted by § 7 nor prohibited by § 8 and issues a cease & desist order. Held: Not only did Congress preempt states and localities from getting involved in activities which the statute regulates, but it prevents them from regulating activities that the statute doesn’t regulate.

i. Rule: Some activity may be protected by federal law when it is the kind of activity Congress intended to leave unregulated because it would provide economic power to either side. (Fits within 2nd level of preemption)

ii. Congress was specific when it wanted to outlaw specific economic action on the part of the union (i.e. no secondary boycotts). It meant to imply that the other things that unions do should be free from regulation

d. Wisconsin Dept. of Industry, Labor and Human Relations v. Gould, Inc ., 475 U.S. 282 (1986): State agencies are not allowed to do business with any company that has violated the NLRA 3 times within a 5 year period. In addition, if a company is on the list, they cannot get a state contract. Gould is on the list because of actions of another Gould office in another state and so they can’t sell their products to a Wisconsin agency. Held: Although state is doing so using its Spending Power, it is enforcing the NLRA which is preempted.

i. NLRB is supposed to impose remedies, not the statesii. This is a punitive sanction and NLRB cannot award punitive damages

iii. Wisconsin wants to be considered a “market participant”-not as regulator, but as a private party that can choose who they want to deal with. Court’s response is that this state is actually serving as a regulator by refusing to deal with repeat violators. BUT market participants engage in boycotts.

B. The Market Participant Exception and Modern Developments a. Building and Constr. Trades Council of the Metropolitan Dist. v. Assoc. Builders

& Contractors of Mass./Rhode Island, Inc., 507 U.S. 218 (1993) (“Boston Harbor”) : The Massachusetts Water Resources Authority (MWRA) hired Kaiser


Engineers on a project to clean out the Boston Harbor. With the MWRA's permission, Kaiser entered into a pre-hire agreement with the Building and Construction Trades Council. Then the MWTA required subsequent bidders to abide by the labor agreement. Associated Builders filed a charge with the NLRB contending the agreement was preempted by the NLRA. COA held that MWRA's intrusion into the bargaining process was pervasive and not the sort of peripheral regulation that would be permissible under Garmon. It also held that according to Gould, it was regulating activities that Congress intended to be unrestricted by governmental power. Held: Preemption doctrines only apply to state regulation. Here, government is acting as a proprietor rather than as a regulator. Although the state may not use its purchasing power to enforce the NLRA, the state has a right to advance its interests as a proprietor.

b. Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospitality Resources, LLC, 390 F.3d 206 (3d Cir. 2004) : Sage Hospitality approached the Urban Redevelopment Authority of Pittsburgh to get tax increment financing (TIF) to complete a construction project. The City approved the TIF funding. After approving the funding, the City passed a resolution requiring Sage to enter into a post construction certified labor agreement with a union recognized by the NLRB. The City also passed an ordinance requiring contractors and employers whose employees were hired to staff the hospitality operations to be part of collective bargaining agreements. Sage did not enter into a labor agreement after completing the hotel. The City passed a resolution to withdraw its funding. To obtain funding, Sage then entered into a labor and neutrality agreement with the AFL-CIO HERE, requiring arbitration to resolve disputes. Sage got the TIF funding. However, Sage claimed that the neutrality agreement was void and illegal when the union demanded arbitration over a dispute. Held: City not preempted from requiring parties receiving tax increment financing to sign a labor neutrality agreement.

i. Two Step Test to distinguish when a state is acting a regulator v. a proprietor:

1. Does the challenged funding condition serve to advance or preserve the state's proprietary interest in a project or transaction, as an investor, owner, or financier?

2. Is the scope of the funding condition specifically tailored to the proprietary interest?

ii. If the government satisfies this test, then there is no preemption. If not, we must look to the preemption standards set forth above.

1. Here, the government has proprietary interests to have a labor agreement to prevent work stoppages. It also acted as a reasonable investor.

iii. §302 of LMRA doesn’t apply to the neutrality agreement (as giving thing of value to the union. §302 was meant to stop corruption.

c. Metropolitan Milwaukee Ass’n of Commerce v. Milwaukee County , 431 F.3d

277 (7th Cir. 2005): Chapter 31 of the General Ordinances of Milwaukee County requires firms that have contracts with the County for the provision of


transportation and other services for elderly and disabled residents negotiate labor peace agreements with any union that wants to organize employees who work on County contracts. The Plaintiff is seeking an injunction against enforcement of the provision. Held: State here is using its Spending Power to regulate labor relations which is impermissible; injunction granted.

i. Posner: When the state is intervening in the labor relations just of firms from which it buys services, and it is doing so in order to reduce the cost of increase the quality of those services, there is no NLRA preemption (Boston Harbor). However, the state may not use its spending power to regulate labor relations. It is trying to impose its own labor management philosophy over that espoused in the NLRA.

d. Northern Ill. Chptr. of Assoc. Builders & Contractors, Inc. v. Lavin , 431 F.3d

1004 (7th Cir. 2005) : Illinois subsidizes the construction or renovation of renewable-fuel plants. As a condition of the grant, the recipient must enter into a project labor agreement. The agreement must establish wages and benefits and must include a no-strike clause. As a practical matter, this requires the employer to recognize and bargain with unions. The plaintiff, an association of non-union contractors, is seeking declaratory judgment that the project labor agreement is preempted. Held: Although state is not acting as a proprietor, the statute is permissible because not all legitimate state activity that affects labor is preempted.

i. The state is not a proprietor here because it doesn't own any part of these projects; it's just making a grant.

ii. Nevertheless, the NLRA supplants state labor regulation, not all legitimate state activity that affects labor. Proprietary interests are not the only permitted interests.

iii. Rule: In general, placing project-specific conditions on the receipt of a grant are NOT regulation. This is no different than requiring doctors to perform abortions to accept federal grants as in Rust. A general ban like Wisconsin did will likely not be permissible. Because Illinois has limited its condition to the project financed by the subsidy, it has not engaged in regulation under Boston Harbor or Gould, so no preemption here.

e. Chamber of Commerce v. Brown , 2008 U.S. LEXIS 5033 (2008) : A California statute, AB 1889, prohibits several classes of employers that receive state funds from using the funds or assist, promote, or deter union organizing. The question is whether two of its provisions, one that's applicable to grant recipients and one that's applicable to private employers receiving more than $10,000 in program funds per year, are preempted. AB 1889 exempts certain activities that promote unionization, including allowing union organizers to access employers' facilities. Held: AB 1889 is preempted by federal law.

i. Use of state funds : California may not indirectly regulate labor by imposing spending restrictions on the use of state funds. California passed AB 1889 in its capacity as a regulator. California was trying to change labor policy, not to ensure the efficient procurement of goods. Reliance on a use restriction rather than a receipt restriction does not lessen the potential for conflict between the NLRA and AB 1889. AB 1889 makes an


employer restrict its free speech, or forgo state funds. Employer free speech is protected by § 8(c). If California can't regulate speech directly, then can't do it indirectly through restrictions on use of state funds.

ii. NLRB Regulation : The NLRA intentionally leaves certain areas of speech free of regulation. California cannot impinge on these areas through its own regulation.

1. No proprietary interests here: Imposing a rule that applies to everyone in the state who receives $10,000 suggests regulation, not market participation.

2. Receipt of funds v. use of fundsa. Use restriction is narrower than a receipt restriction as in

Gould as it doesn’t comprehensively regulate entity. But, here, the restriction is burdensome enough that it resembles a receipt restriction. A use restriction with too much restrictions puts too much pressure on employer's right to speak against unionization.

i. Borderline question: when does money stop being the state's money

b. Receipt restriction: If in order to get money, you need to do XYZ OR you can't do XYZ to get money.

3. Federal statutes: COA reasoned that Congress could not have intended to preempt AB 1889 because Congress itself has imposed similar restrictions. However, the mere fact that Congress has imposed targeted federal restrictions in certain limited contexts does not invite the states to override federal labor policy in other settings.

a. Machinists preemption (unregulated area) does not apply here since there are lots of regulations surrounding employer speech

b. Generally we infer zones of market freedom implicitly. But, here there is an explicit recognition in §8(c) that employer speech and involvement in union organizing must be left free unless coercive.

i. In addition, free & open debate on unions is critical to employee free choice. Cal. is limiting this.

VI. THE CURRENT STATUS OF TRADITIONAL “ECONOMIC WEAPONS”: STRIKES AND PICKETS

Another tenet of American labor law provides that the success of collective bargaining depends in part on unions’ and employers’ ability – when necessary – to wield “economic weapons.” The threat these weapons pose is meant to encourage the parties to reach agreement through negotiation. This section of the course examines the law’s treatment of these economic weapons.

A. The Strike a. Employer discrimination on the basis of union membership: NLRA §8(a)(3)

makes it unlawful for an employer to discourage or encourage membership in any


labor organization by discrimination in regard to hiring or tenure of employment, or with respect to any term or condition of employment.

i. Discrimination in tenure, terms, or conditions of employment: It is an unfair labor practice under 8(a)(3) for an employer “by discrimination in regard to tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization.” An employer thus may not lay off, demote, transfer, etc. if the employer's decision is based on union considerations, or if the employer's action would have the inevitable effect of encouraging or discouraging union membership.

1. Strikebreakers: If is an unfair labor practice to offer 20 years of super seniority to strikebreakers and permanent replacements of strikers. (NLRB v. Erie Resistor)

2. Permanent replacements: Mackay: An employer has a right to continue operations during strike, so may permanently replace employees during a strike. The workers who go on strike do not have a right to return if the permanent employees decide to stay.

3. Movement of plant operations: Not a violation if dictated by sound economic justifications (Rapid Bindery).

b. Employer economic weaponsi. Lockouts: An employer engages in a lockout when it closes a plant to

workers in anticipation of a strike. An employer may do a lockout when collective bargaining negotiations have reached an impasse, or special circumstances are present, like the threat of imminent and irreparable economic loss to the employer.

ii. Replacements: The NLRB has held that the employer may hire temporary replacements during lockouts.

iii. Unlawful lockouts: When the employer does a lockout to evade a duty to bargain in good faith or with intent to injure the union

c. NLRB v. Mackay Radio & Telegraph Co. , 304 U.S. 333 (1938) : Employees of Mackay Radio went on strike when it seemed process toward a new CB agreement would not occur. Company brought in workers from other offices to fill the places of the SF strikers. Company had promised the replacements permanent positions. The workers who had been very active in the union were not replaced. Board: Employer discriminated against these employees. Held: Board order sustained because striking employees are still employees and the employer discriminated against the workers who had been active in the union.

i. Employer has the right to hire permanent replacements. However, it was a ULP to discriminate against workers who had been active in the union by refusing to reinstate them.

ii. Employer cannot fire striking workersiii. Employer need not demonstrate they need permanent replacements

d. NLRB v. Erie Resistor Corp. , 373 U.S. 221 (1963) : During a strike, the company continued production with non-strikers. Later, the company hired replacements to whom it promised special seniority at the end of the strike. It also offered super seniority (20 additional years) to striking workers who would return. After that,


many strikers returned to work, and the parties reach a settlement agreement. Then everyone returned to work. However, 9 months later, the employer laid off half of its workforce in a massive cutback. Many of the laid off workers were reinstated strikers who had not received super-seniority. The union filed charges with the Board. Board: A preferential seniority policy is illegal because it discriminates against workers engaging in protected activity: it discriminates against all strikers permanently, it tries to induce individual strikers to stop, erases job security, and renders future bargaining difficult by dividing the workforce into two permanent camps. Held: COA erred in holding that a legitimate business purpose is always a defense to a ULP charge in the absence of a finding of specific illegal intent.

i. Super seniority provisions render a crippling blow to the labor movement. This is a per se indication of bad intent. Super seniority is worse than permanent replacement. Employer is rewarding non-strikers and hurting the strikers.

1. Benefit from not going on strike is ability to keep one’s job.e. “Unfair Labor Practice Strikers,” : An employer is entitled to permanently replace

economic strikers (over conditions of employment), but workers who strike over a ULP or series of ULPs are entitled to reinstatement even if it means displacing those employees hired as replacements. Employer may temporarily replace unfair labor practice strikers, but not permanently replace them.

i. Rationale1. ULP strike replacements would undermine the union2. In an economic strike, if union is being unreasonable, we would

expect a lot of workers to lose their jobs. A ULP strike is not about economics so it means nothing that the union is willing to strike and risk their employees.

a. BUT, this may be inefficient- there may be inaccurate information; oversupply of workers available at wrong market rate. Furthermore, the purpose of unions is to drive the wage up above where they would have been absent CB. So it shouldn’t matter that workers are willing to work at the lower wage.

f. Avery Heights , 343 NLRB No. 128, 2004 NLRB LEXIS 736 *1-*75 (2004) : SEIU represents 180 service employees at nursing home. Union contract expired; union went on strike. Employer wanted to hire replacements before the union found out in secret and hired consulting firm to obtain these employees.

i. ALJ: The employer was trying to oust the union as bargaining rep.ii. Board: Employer has the right to continue operations and fight back in the

economic battle. 1. The secret Christmas memo demonstrates the employer merely

wanted an advantage in bargaining. But then wouldn’t the employer make it public that they are seeking to replace the workers?

2. No other purpose can be seen from the secrecy other than to oust the union


3. BUT, there are legitimate ways of achieving economic goals other than by destroying the union

iii. Test: Inquiry into employer motive. iv. Dissent:

1. Employer’s conduct was not economically motivated. Employer had the independent unlawful motive to undermine the union by engendering dissatisfaction with the union.

2. Burden shifts to the employer to show that it would have taken the same action of secretly hiring permanent replacements even in the absence of unlawful purpose. Employer didn’t meet this burden.

3. If employer cared about long-term cost, it would have revealed its plan to the union.

v. Two kinds of economic motivations at play1. Motivation to end the strike/intent to keep operations running. If

the effect is to destroy the union, that is okay2. Motivation to end the union. This is not okay, according to the

dissent.g. New England Health Care Employees Union, District 1199, SEIU v. NLRB , 448

F.3d 189 (2d Cir. 2006) : Same Facts as above. Held: The purpose of the employer's secrecy was to oust the union and this motive is illegal.

i. An employer has no legal obligation to inform striking workers before hiring permanent replacements. However, secrecy is probative. There are few legitimate business reasons for such secrecy. AND, if employer wanted to leverage its bargaining power, it would have publicized its plan to hire replacements. On remand, Board should consider the natural and logical implications of maintaining the secrecy.

h. James B. Atleson, Values and Assumptions in American Labor Law (1983) : Although employees cannot generally be refused reinstatement at the end of a strike and cannot be discharged, they have no right to reinstatement if they have been replaced by strikebreakers (Mackay). The goal of the Court's opinion is to protect employer's alleged pre-existing property rights. However, this does not seem to be a fair construction of the Act.

B. Picketing : C. Constitutional Questions

a. Thornhill v. Alabama , 310 U.S. 88 (1940) : Under Alabama statute, Thornhill is arrested for picketing by holding a sign that employer does not employer union men. Statute prohibits individual(s) from picketing a business to induce others not to trade with, buy from, sell to, or have business dealings with that business. Held: Statute is invalid because it violates freedom of speech.

i. Offenses listed in Ala. Statute basically swallows every practical method whereby the facts of a labor dispute may be publicized

ii. 1St Amendment needs to protect free exchange and dissemination of ideas because this is how we reach the truth. Discussion of ideas in the public interest does not deprive the employer of economic interest.

iii. Leafletting may not be as effective as picketing –how ideas are expressed may be essential to intensity.


iv. Consider which theory is more important: economic justification or democratic one

b. International Broth. Of Teamsters, Local 695 v. Vogt , 354 U.S. 284 (1957): Union picketing entrance of a company and delivery trucks refused to deliver goods to and from employer’s plant, resulting in substantial damage to the employer. Wisconsin statute makes it a ULP for an employee individually or in concert with others, to coerce, intimidate or induce any employer to interfere with any of his employees in the enjoyment of their legal rights. Held: Wisconsin ban on picketing can be upheld.

i. A state, enforcing some public policy, can constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy. Blanket restrictions are not permissible. E.g. see Thornhill statute which made all picketing illegal.

ii. Rule: Although peaceful picketing involves more than just communication of ideas, it cannot be immune from all state regulation. It may be proscribed in certain contexts.

iii. Ritters Café : Supreme Court affirmed injunction against union’s secondary picketing of a restaurant to put pressure on the owner for issues arising from the construction of the building.

1. this type of picketing involves very little communicationiv. Gazaam : picketing for an unlawful purpose is acceptablev. Is picketing speech?

1. Picketing is the exercise of economic power and that is enough to deprive it of first amendment protection

2. Prohibitions on picketing is justified on a clear and present danger or imminent risk justification. “Time place and manner”

3. There must be express content to a physical act for it constitute permissible picketing. Violence is excluded.

c. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council , 485 U.S. 568 (1988) : DeBartolo owned a shopping mall at which Wilson Co. planned to build a store. High Construction was retained by Wilson Co. to construct a department store in the mall—DeBartolo nor any of the other stores in the mall had a contractual right to influence the selection of contractors. Union peacefully handbilled the business operating in the mall owned by DeBartolo but the union’s primary dispute was with High Construction over substandard wages and benefits. Union refused, upon request, to make note on the handbill that DeBartolo and the other stores were not involved in the dispute and to limit their handbill distribution to the Wilson site. DeBartolo filed a §8(b)(4) charge (outlaws secondary boycotts) with the NLRB. NLRB: The handbilling at issue here was unlawful coercion. Held: §8(b)(4) does not proscribe the handbilling involved in this case. There is no reason to find that mere handbilling coerces secondary employers.

i. § 8(b)(4) forbids secondary boycotts that take the form of inducing employees of a neutral or secondary employer to engage in work stoppage, or a union from threatening, coercing, or restraining any person who is a neutral or secondary employer. This bans picketing at a secondary site


directed to customers thereto. However, the section also shelters publicity, other than picketing, for the purpose of truthfully advising the public, including consumers, that a product or products are produced by an employer with whom the union has a primary dispute and are distributed by another employer.

ii. §8(b)(4) is unclear whether a congressional prohibition of handbilling would violate the 1st Amendment.

iii. Catholic Bishop Rule applies here: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Don’t needlessly confront constitutional issues. The statute here is vague, thus must be interpreted narrowly.

iv. Alternative interpretation of the statute: Test: Whether handbilling must be held to “threaten, coerce, or restrain any person” to cease doing business with another within the meaning of §8(b)(4)(ii)(B). The restriction does not apply to mere persuasion involved in peaceful pickets. There needs to be a showing of threats, coercion, or restraints.

d. Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005): Building trades union held aloft huge banners announcing a labor dispute located in a place visible to customers of the retailers that deal with contractors who do not have union contracts. While the banners are being displayed other union members distribute handbills that explain the labor dispute. Union wants to induce 3 contracting companies (who employee nonunion employees) to change their labor practices by influence the companies that contract their services. The banners said “Shame on retailer” and “Labor dispute.” NLRB: Wanted to enjoin the bannering not the handbilling. District Court: Declined to issue an injunction because bannering did not have the intimidating nature of a picket. Held: District court decision not to issue an injunction affirmed.

i. The banners do not create a physical barrier as picketing/patrolling a front entrance would be. There is nothing threatening or coercive. This is not a picket. Furthermore, the 1st Amendment protects the right to communicate one’s views in the presence of individuals they believe are engaging in immoral or hurtful behavior.

ii. NLRB Regional Director Overstreet can prevail only if the Carpenters’ actions were sufficiently intimidating to threaten, coerce, or restrain potential customers of the Retailers.

1. There is nothing coercive about the union members’ physical presence. This was not picketing.

a. No ambulatory picketing (one-on-one communication) here.

b. No signal picketing. Signal picketing- implicit instruction to other union members, including union members of secondary businesses, to get involved in the demonstration, eliminating the need for the signaling union officials to


make their direction explicitly. Also, signal picketing is between union officials and union members, not between union members and passerbys.

i. Note: free speech protections “do not apply to a mere signal by a labor organization to its members…to engage in an unfair labor practice such as a strike proscribed by §8(b)(4)(A).

iii. Fradulent language: There is no fraudulent language implying there is a primary labor dispute. There is a primary or secondary dispute that the union sees itself being in. Readers will realize that it is not a traditional labor dispute. Secondary disputes are still disputes within the NLRA.

e. Hudgens v. NLRB , 424 U.S. 507 (1976) : A group of union members were engaged in a peaceful primary picket within the confines of a privately owned shopping center. Owner threatened they would be arrested for criminal trespass if they didn’t stop. NLRB: Held this threat violated the NLRA. The mall was open to the public and had a financial interest at stake in the welfare of its lessees. Held: Free speech does not apply here; NLRB must analyze the threat based on §8(a)(1) (on remand it did).

i. Logan Valley stated that a large, self-contained shopping center is the functional equivalent of a municipality that can’t have content-based 1st Amendment restrictions. But, Lloyd overruled Logan Valley and held that respondents in that case did not have a 1st Amendment right to enter a shopping center to distribute handbills concerning Vietnam. So, the respondents in the present case did not have a 1st Amendment right to enter the shopping center to advertise their strike against Butler Shoe. Free speech does not apply here.

ii. As employees, the picketers were entitled to just as much protection as were the nonemployee union organizers in Babcock

D. Consumer Picketing a. Background Material on Consumer Appeals :

i. Designed to close certain loopholes in the secondary boycotts provisions. Made it a ULP for a labor organization to encourage the employees to engage in a strike or concerted refusal to process, transport, or otherwise handle goods where an object was to force one person to cease doing business with another.

ii. Under the original language of §8(b)(4), to violate the statute against secondary picketing, the activity had to induce employees (which included supervisors, farmworkers, government & railway employees etc. under §2(3)) to engage in concerted refusal to perform their jobs. The 1959 Landrum-Griffin Amendments made it a violation of §8(b)(4)(i) to induce an individual to refuse to work for his secondary neutral employer. A union also could not “threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce” where the union’s objective was secondary.

1. This revision was interpreted narrowly by the NLRB in NLRB v. Servette, where Servette union reps convinced supermarket


managers to stop selling Servette products and distributed handbills against Servette at supermarket stores. NLRB held that the managers were not individuals within the amended act, and thus handbilling was allowed. SCOTUS: “individual” included supermarket managers , but found there was not illegal inducement. §8(b)(4)(i) only prohibits encouraging someone from refusing to perform their duties. Handbills are permissible. §8(b)(4)(i) was not intended to limit union appeals to the public.

b. NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 (Tree Fruits) , 377 U.S. 58 (1964) : Dispute is over Washington Apples. They picket secondary employer Safeway and inform customers not to buy Washington Apples at the grocery store. Because the picketers are not asking customers to boycott Safeway, but just not to buy Washington Apples, the NLRB says the statute does not reach their activity. Held: Union picketing of Safeway is permissible because the union’s activity to the public is confined to their dispute with the primary employer even if they are doing so on the secondary employer’s property.

i. Secondary companies assume the risk; all that matters is that the picket follow the struck product

ii. Dissent: The Act only refers to “threatening, coercing, or restraining any person.” These are modes of expression, not types of secondary consumer picketing. No 1st Amendment violation to restrain such activity because picketing is conduct.

c. NLRB v. Retail Store Employees Union, Local No. 1001 (Safeco Title Ins. Co.) , 447 U.S. 607 (1980): Safeco Title Insurance did business with 5 small title companies. When Safeco employees went on strike, union picketed Safeco’s head office and each of the 5 title companies. Union asks their customers to cancel their Safeco insurance policies. This is similar to Tree Fruits in picketers are telling customers not to buy the struck product. Board: Because the Safeco insurance policies accounted for substantially all of the title insurance companies’ business, the picketing was calculated to induce customers not to patronize those companies at all. Held: If the effects of product-specific picketing is the same as a secondary boycott, then even product-specific picketing is a ULP and is illegal under the act. This applies when the product being picketed counts for enough of the secondary employer’s business. Violates §8(b)(4)(ii)(B).

i. Distinction with Tree Fruits: over 90% of the title agency revenues came from sale of Safeco Insurance. Safeway sold 10,000 products, only a small percent of which derives from Washington Apples So, customers would effectively need to take their business elsewhere.

ii. Brennan’s Dissent: The product picketing of the title companies is lawful. Under Tree Fruits, as long as the secondary picketing follows the primary dispute (boycott of products originating from nonprimary sources), that’s what matters under the law. Even if in some instances, the individual distributors won’t have an impact on the primary dispute, in the aggregate it will. Also, a single-product retailer will be harmed economically by a successful primary boycott depending on the percentage of its business constituted by the primary product.


VII. LABOR LAW AND ECONOMICS Taking a step back from labor law itself, this mini-section of the course introduces students to competing visions of the role unions play in our economy. We read one of Richard Posner’s articles for an exposition of the view that unionization is inconsistent with an efficient economic order and that unions act as “labor cartels” that raise wages above the level that would prevail under conditions of unregulated competition. We read excerpts from Richard Freeman’s writings to gain a contrasting perspective.

A. Congress had 4 purposes in passing the Wagner Act in 1935:a. Restore Labor peace. Many labor stoppages were happening. Federal protection

for CB would reduce costs for labor management conflictsb. As a response to the Great Depression. Consumer demand didn’t grow quickly

enough. With the NLRA, Congress attempted to respond to the mismatch between productivity growth and wage growth by facilitating CB.

c. To achieve distributional goals. Redistribute income from capital to wages and reduce mass production of goods.

d. Further the collective development of workers and increasing their power vis-à-vis management. (Barenberg)

B. Richard Posner, Some Economics of Labor Law , 51 U. CHI. L. REV. 998 (1984): a. Unions are cartels that cartelize labor markets. Cartels engage in a cooperative

endeavor to raise the price of their services above the level that would exist in competitive environment. Thus, unions will raise the price of labor above where they would be if unions are competing with one another. However, when unionized sector wages increase, non-union employment goes down. Then lower employment levels in the union sector will drive wages down for nonunion workers.

b. Role of labor law. We need labor law to facilitate cartelizationi. 2 related arguments

1. Rational predatory action. It would be rational for an employer to fire an employee engaged in labor activity despite the cost because the cost would be smaller compared to the benefit of signaling to the rest of employees to STFU and STFD and that if they try to organize they will be fired too.

ii. Large number problem. There are usually a small number of competitors. It’s hard to cartelize with a large number of competitors (a lot of workers). This is because of defection (traitors, free riders, returning to work). Workers can be brought in after a successful organizing campaign and accept non-union conditions. Labor law prohibits this type of substitution- all workers at the workplace would get union wage.

c. State and federal judges are more committed to the economic theory than would be an administrative agency

d. Counter to Posner: Unions benefit their members by increasing productivity. BUT, the fact that businesses fight unions is good evidence that unionization is bad for things like productivity and efficiency.


i. BUT, COUNTER- employer shave reasons to fight unions for reasons other than productivity---unions take control away from management.

C. Richard B. Freeman and James L. Medoff, What Do Unions Do? (1984) : a. Freeman agrees with Posner that unions have monopoly power and these wage

increases can cause some harm to national input or distribution of income. BUT, unions care about both wage levels and employment levels so they won’t drive wages up so high that it will hurt employment. Union will ask for moderate wage increases. BUT, union wage gains come with an overall decline in economic activity

b. If unions are going to exercise monopoly power, they will most likely thrive in areas where firms also have monopoly power because if there is perfect competition, and a union raised wages at some firms and not others, the nonunionized firms would go out of business.

c. In imperfectly competitive areas, union wage gains amount to rent-sharing. Union wage increases will cause redistribution of rents from capital to labor.

d. How do employees express their dissent over working conditions if it is not by going to competitive firms?

i. Exit: leave firm and seek better conditions elsewhereii. Voice: express their dissent over poor working conditions. Unions are an

important voice mechanism. If left this up to individual voice, public goods would be undersupplied because of the free rider problem.

e. Without a union, firms are concerned with the marginal worker because those are the workers ready to exit. Firms will thus tailor their compensation packages to those workers who come and go. If a union is involved, however, firms are more likely to tailor compensation packages to senior workers with seniority in layoff provisions.

f. Wage Compression. In unionized firms, differences between the top most paid worker and lowest paid worker will be more standardized and compressed. In addition, unions do more for higher paid workers which reduces wage differentials among unionized firms. But, unions increase inequality between union and non union firms.

g. Productivity. Unionized employers earn lower profits. Higher wages are not made up for in gains in productivity.

D. Richard B. Freeman, What Do Unions Do? The 2004 M-Brane Stringtwister Edition, in James T. Bennet and Bruce E. Kaufman, eds., What Do Unions Do? A Twenty-Year Perspective : Empirical data that unions reduce wage inequality. In some sectors, unions are good for productivity, in others they are not or have no effect. Unions reduce profits. Freeman thinks there could be traditional voice without labor unions i.e. European work councils could provide monopoly voice without increasing wages.

VIII. UNIONS AND POLITICS The NLRA attempts to protect employees’ freedom to choose whether or not to be represented by a union. But the meaningful exercise of this freedom depends on workers’ ability to communicate fully and freely with each other about workplace governance. In this section of the course, we examine where and how courts balance employees’ rights to communicate about unionization with managerial interests in controlling the work environment. We then extend our


inquiry to worker communication with the larger political community. It is in the workplace that employees most frequently communicate about workplace governance. But unions, through participation in electoral politics, also endeavor to communicate with the polity at large about their interests, the interests of their members, and the interests of workers generally. We examine the laws that govern union political speech and participation, focusing on the laws that regulate unions’ use of member dues for political purposes and on the First Amendment jurisprudence regarding union-funded political communications.

A. Unions and Political Speech a. Unions and workers have an interest in communicating with the general polity

and through the arena of electoral politics. Unions engage in political education and get-out-the-vote programs with their membership. Campaign finance law underwent change with Citizens United so much of the doctrine is now unconstitutional.

b. United States v. United Automobile Workers , 352 U.S. 567 (1957) : Criminal proceeding for political expenditures. 18 USC § 610 prohibited corporations and labor organizations from making “a contribution or expenditure in connection with “any election for federal politics because massive aggregation of corporate wealth lead to a semblance of undue influence and corporate corruption. Labor union used union dues to sponsor TV ads in connection with the 1954 elections. Held: Corporations and unions should be treated the same for campaign finance purposes. Aggregative speech regardless of the entity’s wealth is improper. BUT, some aggregations of organizations do not have a loud “voice.”

i. Statutory interpretation: Labor union’s financing of the TV ad constituted an expenditure. The purpose of the Act was to reduce concentrated wealth from unduly impacting elections.

ii. Industrial development led to the growth of corporations. WWII and economic demand enabled that wealth to flow to unions.

iii. US v. CIO decision can be distinguished. You can distribute political leaflets to you rown members.

c. Pipefitters Local Union No. 562 v. United States , 407 U.S. 385 (1972) : Union convicted of violating 18 USC §610 which forbids “any corporation, whatever, or any labor organization to make a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors or a Senator or Representative in Congress are to be voted for, or in connection with any primary election or political convention or causes held to select candidates for any of the foregoing offices.” Union had a $1million PAC fund that received contributions from members and disbursed $150,000 to candidates in federal elections. The political contributions by the fund were made from accounts strictly segregated from union dues and assessments. Furthermore, donations to the fund were not mandatory. All contributors signed cards acknowledging that their contributions were voluntary and not part of their union obligations. Held: Segregated fund must be kept separate from union dues and assessments. Union must ensure that no union dues are in the PAC fund.

i. Rule: As long as the monies are separate and are voluntary political contributions, the labor union can control the fund entirely


ii. The aggregated wealth Congress was concerned about in enacting this statute were funds from the general union treasure; not funds donated by union members with their free and knowing choice. Congress does not want wealth aggregated for nonpolitical purposes to be used in political sphere.

iii. Policy: Is aggregation of wealth a problem or aggregation of wealth for nonpolitical purposes?

1. PACs can spend an unlimited amount of money on a candidate. There is a limit on contribution, but not expenditures (i.e. TV ads)

2. Union does not exist solely for politics3. We wouldn’t want dissenting individuals to have their views

expressed for them4. Questionable whether “voluntary” contributions are truly voluntary5. Union as a whole is representing a political idea even if the

employee does not believe in that directly6. Union can still use its institutional resources to raise money for the

PAC- speaking to 300+ workers at once to advertise the PACd. Citizens United v. Federal Election Commission , 130 S. Ct. 876 (2010): Citizens

United is a nonprofit corporation and most of its money is donated by individuals. They make a film entitled “Hillary: the Movie” that is critical of Hillary which they want to make available on video-on-demand within 30 days of a federal primary. BCRA prohibits corporations and unions from using their general treasury funds for express advocacy or electioneering communications. An electioneering communication that “refers to a clearly identified candidate for federal office” and is made within 30 days of a primary or 60 days of a general election that is “publicly distributed.” However, corps & unions can established a “separate segregated fund” i.e. PAC for these purposes—limited to donations from stockholders & employees of a corporate or union members of a union. Held: Government cannot completely ban corporate political speech.

i. Government interests:1. Antidistortion interest: Overrules Austin which said that

government has compelling interest in preventing the distorting effects of the mass aggregation of wealth that has little or no correlation to the support of political ideas.

2. Anticorruption interest3. Shareholder interest

ii. 1st Amendment does not permit Congress to limit free speech based on the speaker’s identity. This discrimination is a necessary consequence of a rule limiting speech based on a speaker’s wealth.

iii. It is irrelevant that corporate funds have little or no correlation for the promulgation of ideas. Everybody uses money amassed from the marketplace to fund their speech (even private individuals). This speech is protected even if individuals who contribute to the corporation disagree with their ideas. Corporations pay everyone..everyone contributes to speech.


iv. Anticorruption justification holds no weight. Corporations are more accountable than individuals. Shareholders can demonstrate disapproval by selling their shares/voting against the current board.

1. Quid pro quo is not corruption. That a union may have access to elected officials by placing an ad is politics. BUT, unions may not spend this type of money for ads unless it would give them influence and access.

v. PACs are too burdensome a means for corporations to express themselves.vi. Personal terminology clarification

1. Contribution- money to a specific candidate2. Expenditure- money spent on ads/tv campaigns etc

vii. Dissent by Stevens1. Its typically not the shareholders who are speaking when a

corporation endorses a candidate. Shareholders are far removed from the day to day of the firm.

viii. Discussion about PACs1. PACs solve the distortion problem because most people who

donate do so specifically for political reasons2. BUT, if PACs are separate from the corporation. If let a corporate

PAC speak, you’re still not letting the corporation speak. 3. PACs are burdensome alternatives to corporate speech- expensive

to administer, burdened with regulations, very few corporations have them

4. Voice in the union context is different than “voice” in the corporate context. Unions are built to give workers a collective voice; corporations are not.

e. International Association of Machinists v. Street , 367 U.S. 740 (1961): Contract between union and employee says that each employee, as a condition of employment, must pay union dues to be a union member. They don’t need to be a full-fledged member of the union but must pay the dues & fees to keep their jobs. Constitutional challenge on grounds that being forced to be a union member forces them to promote political economic doctrine that they disagree with. Held: Unions may not use dues to support candidates over an employee’s objections.

i. Not enforcing the labor union contract would violate the NLRA. Mandatory union dues is acceptable and necessary for CB.

ii. §2 11th which authorizes union shop agreements does not vest unions with unlimited power to spend money exacted from employees. Use of money toward political candidates falls outside the reasons advanced by unions for Congress to allow dues to be mandatory (free rider problem and to help defray expenses of negotiation of CB agreements).

iii. Court avoids discussing constitutional issue, but is there state action here?1. State action: statutory regime supplants other forms of contracting

and facilitates contracts between private partiesf. Communications Workers of America v. Beck , 487 U.S. 735 (1988): §8(a)(3) of

the NLRA permits an employer and a union to agree that all employees in the bargaining unit will pay dues as a condition of continued employment, whether or


not individual employees want to join the union. Employees brought suit, challenging the union's use of their agency fees for purposes other than collective bargaining, contract administration, or grievance adjustment. Specifically, they alleged that the union's expenditure of their fees on activities like organizing the employees of other employers, lobbying for labor legislation, and participating in social, charitable, or political events violated their duty of fair representation under the NLRA and the First Amendment. COA: Collection of fees for purposes other than CB violated NLRA. Held: Affirmed.

i. Street is controlling precedent although it was decided under the Railway Labor Act. Congress intended the same meaning for both. Both acts were intended to prohibit free riding. Congressional authorization of union shop limits the expenditures that may properly be charged to nonmembers to those necessarily or reasonably incurred for the purpose of performing the duties of an exclusive bargaining representative.

IX. MAJORITY RULE, EXCLUSIVE REPRESENTATION, AND THE INDIVIDUAL WITHIN THE COLLECTIVE A. Background Material on the Duty of Fair Representation :

a. Duty owed to all employees in the unit: According to §9(a), the union selected by the majority of employees shall be the exclusive representative of all employees in the unit, whether they are members of the unit or not. This right carries with it the duty to represent all members fairly.

b. Union discrimination: If a union is the authorized bargaining agent, it is under a duty to represent all employees in the bargaining unit fairly (Steel).

i. §8(a)(2) makes it unlawful for a union to cause or attempt to cause, an employer to discriminate against an employee

1. Steel v. Louisville : the union negotiated a CB agreement that discriminated against black union members. The Supreme Court granted an injunction against enforcement of the agreement, holding that the union had breached its statutory duty to represent the interests of all its members.

2. Vaca v. Sipes : The union’s failure to fairly represent an individual or group of employees in the bargaining unit may also violate §8(b)(1)(A) (ULP). See also Steel v. Louisville and Nashville RR.

3. What is a breach? A union breaches its duty to fair representation when its conduct toward a member of the unit is “arbitrary, discriminatory, or in bad faith.” (Vaca)

a. Grievance procedures: The union need not take up every grievance or take every grievance to arbitration, nor must the union seek judicial review of an award unfavorable to the employee or judicial enforcement of a favorable award. However, the union must act in good faith. (Vaca).

i. Individuals also have the right to pursue grievances directly with the employer.


c. J.I. Case Co. v. NLRB (1944): SCOTUS concluded that the CB agreement took priority over and displaced individual contracts of employment negotiated by the employer.

d. Vaca v. Sipes , 386 U.S. 171 (1967) : Owens filed a class action against the National Brotherhood of Packinghouse Workers, alleging that he had been discharged from his employment in violation of the CB agreement (for poor health), and that the union had arbitrarily refused to take his grievance to arbitration under the fifth step of the bargaining agreement's grievance procedures. Union challenged the jurisdiction of Missouri courts on the ground that the alleged conduct of the union was arguably an unfair labor practice and within the exclusive jurisdiction of the NLRB. Held: Missouri Court had jurisdiction. Union did not breach its duty of fair representation.

i. A union has a duty to represent all members of its unit and to do so in good faith free of arbitrary discrimination. To fail to do this is a ULP, and such practices are generally governed by the NLRB. However, preemption doctrine has not been rigidly applied to cases where it could not fairly be inferred that Congress intended exclusive jurisdiction to lie with the NLRB.

1. Duty of fair representation is a judicially developed doctrine (so the rationale for preemption of uniform labor law does not apply).

2. It is also unlikely that the NLRB has special expertise in these cases and it is likely it wouldn’t remedy all of these issues.

3. Oftentimes, a duty of fair rep case would be related to a LMRA breach of contract dispute which NLRB would not resolve

ii. A breach of fair representation occurs when a union’s conduct towards a member of the CB unit is arbitrary, discriminatory, or in bad faith. A union does not breach its duty of fair representation merely because it settled a grievance short of arbitration.

iii. Dicta: Liability should be apportioned between the employer & union according to the damage caused by each. An alternative remedy could also be requiring the union to arbitrate.

e. Steele v. Louisville & Nashville R. Co ., 323 U.S. 192 (1944): Steele is a black fireman for the Louisville and Nashville Railroad Company. The Brotherhood is the union, and it excludes many black workers. Union announced several discriminatory policies it wanted employer to comport with: (1) exclude all black firemen from the unit although union represent all firemen; (2) only promote white firemen to serve as engineers, and that only promotable (as in white) fireman should be employed as firemen or assigned to new runs or jobs or permanent vacancies; (iii) agreement that not more than half of fireman in each class of service could be black; and (iv) controlling the seniority rights of black firemen and restricting their employment. Pursuant to this agreement, Steele was replaced by a white worker for a favorable position, and then switched to a less favorable job. He was not given notice or an opportunity to be heard. Held: Injunction is possible remedy for the discrimination based on irrelevant and invidious criteria.


i. RLA states that “employees shall have the right to organize and to bargain, collectively through representatives of their own choosing.”

ii. Chosen representative becomes the exclusive representative and thus there is an implicit duty that this representative represent the whole unit. Bargaining representative has powers similar to a legislative body and cannot discriminate.

iii. Some terms of an agreement may be unfavorable to members, however, i.e. difference due to seniority

f. Emporium Capwell Co. v. Western Addition Community Organization , 420 U.S. 50 (1975) : Employees claimed their employer discriminated against them on the basis of race. Union said they would process every instance of discrimination in grievance procedures if necessary. Black employees felt that the grievance procedure was inadequate to resolve discrimination of this kind. When union declined to picket, several employees held a press conference where they denounced employers policies as racist. They also picketing and handed out flyers encouraging people not to shop at the store. NLRB: Discharge of employees did no violate the Act. Held: Employee activity not protected by §7.The principle of majority rule is central to labor law’s policy of CB and the interest s of minority groups may be subjected to the majority.

i. A union cannot organize a bargaining unit based on race. Otherwise, the majority can exercise exclusive control over a bargaining unit because the workers within the bargaining unit have commonality of interests.

ii. Duty of fair representation. Vaca v. Sipes makes it a ULP for union to refuse to process requests against discrimination. Union did not violate this because they said they would diligently litigate the case through the grievance procedure.

iii. Exception to exclusivity rule for race. The NLRA must be construed in light of a national policy against discrimination. Making exceptions for raise would do that.

iv. Unity of the union. A rule allowing this kind of bargaining would divide workers along racial lines or other lines as multiple minority groups press to form their own demands. This is counterproductive to a union’s collective strength.

1. BUT, Cause & Effect: It’s odd to think that allowing separate bargaining would cause division. BUT, will be continuously divisive because minority may never become majority

2. Harmful for self-designated employee representatives to purport to speak for all groups that might consider themselves victims of discrimination. They are not actually representing the wider range of issues. BUT, self-designation may be better than nothing.

v. Policy1. Carving out from §9(a) the ability to protest racial discrimination

would cause a lot of loopholes in the NLRA. 2. Title 7 already has an antiretaliation clause. BUT then unions are

pursuing one means of stopping racial discrimination, and employees another


3. Workers lose some rights being part of the union and can’t do things they would have otherwise done.

X. NEW FORMS OF WORKER ORGANIZING With private-sector unionization rates in the United States now well below 10%, scholars and practitioners are asking what “labor law” has to say about work life for the 90% of private sector workers who are not in unions. The concluding classes explore this question by looking at efforts to organize workers outside the traditional NLRA framework. We start by considering what the NLRA itself has to say about collective action in the non-union workplace. We examine cases regarding the applicability of the Weingarten doctrine (which allows employees to be accompanied by a peer during disciplinary meetings with management) to non-union workers for a doctrinal example with great contemporary relevance. Charles Morris’ book introduces the issues and offers the thesis that the NLRA leaves room for new forms of non-majority unions. We then move beyond the NLRA to examine new forms of “organizing” by workers who have remained almost entirely unreached by unions – employees of subcontracted sweatshops. Relying on the Fair Labor Standards Act (FLSA), these workers are attempting new forms of collective action to press for minimum wage and overtime rights. We examine protections provided by the FLSA for low-wage workers’ ability to organize for and enforce their FLSA rights.

A. NLRA Rights in the Non-Union Workplace a. NLRB v. J. Weingarten, Inc. , 420 U.S. 251 (1975) : Employee accused of

shoplifting called for a union rep to attend the investigatory meeting with her; this request was denied. Board: §7 guarantee for workers to work in “mutual aid and protection” gives employees the right to be investigated with union representation. It must: (a) be under employee’s right to act in concert for mutual aid and protection, (b) be an employee’s choice to have union representative, (c) must be a disciplinary proceeding, and (d) can’t interfere with legitimate employer prerogatives (employer can choose not to have the interview). Held: Employee’s request to have union rep at an investigative interview falls within §7 that employees are allowed to engage in collective action.

i. Furthers the goals of the Act1. Equalizes authority of bargaining power b/t employees &

employers2. Facilitates the investigation to have employer conduct these

interviews only in the presence of a union representative3. Union representative can save employer production time by

facilitating the investigationb. Epilepsy Foundation of Northeast Ohio , 331 NLRB 676 (2000) : 2 employees

write a letter to a boss saying that the supervisor’s supervision is no longer needed. Boss requests to meet with employees. Borg feels intimidated and requests Hasan to come with him. Boss Loehrke refuses this request and Borg refuses to go to the meeting and is fired. General Counsel asks the Board to revisit the issue and hold that § 7 rights do apply in a nonunion setting. Held: General Counsel agrees that §7 rights apply in nonunion settings as well.

i. Examination of precedent


1. Material Research Case (1982): Weingarten applies in nonunion, as well as, union settings

2. Sears (1983): Weingarten only applies to union settings. Scope of §7 varies depending on whether employees are represented or not. Application of §7 in the absence of union infringes on employer’s ability to deal with employees on individual basis.

3. Dupont (1988): statute is open to both interpretations. ii. Rationale:

1. Right to have someone with you in an investigative interview is a literal right under the NLRA

2. Conclusions about the talents of having a nonunion rep with you in an investigative interview, as made in Dupont, were speculative

a. Speculations: That an employee representative has no obligation to represent interests of entire unit and less likely to have the skills equivalent to those that a union representative would have

3. Inquiry into whether concerted activity achieves its goal is irrelevant. Still protected under §7.

c. IBM Corp. 341 NLRB No. 148, 2004 NLRB LEXIS 301 (2004) : *Overturns Epilepsy Foundation* Worker denied representation to have coworker present during investigative interview. Held: Presence of an employee in running an investigative interview would hamper an employer’s investigation.

i. New threats of workplace violence and new needs for investigative interviews justify changing the precedent. There are now increased security/privacy concerns and terrorism a la 9/11.

ii. Unlike union reps, coworkers don’t represent the interests of the entire workforce

1. BUT, Board is wrong. It probably does help balance the power if a coworker is present.

iii. Coworkers do not have the same skills have as a union representative does1. BUT, shouldn’t matter!

iv. Presence of coworker may compromise semblance of confidentiality in these investigations

1. BUT, confidentiality considerations should be balanced against the other statutes

v. Policy1. Nonunion employees only right to have a representative is derived

from the statute. Union agreements can have this either explicitly included or it could be implicit. Given this, §7 has different strength in different settings. BUT, the opposite should be true…in the absence of contractual provisions, there should e statutory protection.

2. Albeit weak, a Weingarten right may be the nascent moment of collective activity that leads to union growth

d. International Ladies Garment Workers v. NLRB (Bernhard-Altman Texas Corp.) , 366 U.S. 731 (1961) : Union initiated an organizing drive, there was a strike by


employees, some employees signed union authorization cards. Union entered into a MOU where employer recognized the union as exclusive bargaining representative for all shipping employees. The agreement calls for the end of the strike. Union said they had majority support of the employees, but no one checks and the company found that this belief was clearly erroneous. Held: The grant of premature exclusive representation violated §8(a)(2).

i. Grant of exclusive representation to a minority union violates §8(a)(2). There is no clearer abridgement of §7 (“to bargain collectively through representatives of their own choosing”).

ii. Acquisition of majority status later on may merely indicate that exclusive representation status gave union a deceptive cloak of authority

iii. Dissent: Minority unions can exist, but just not be permitted to bargain for everybody. It doesn’t need to be a binary choice- either exclusive union or none at all.

e. Charles Morris, The Blue Eagle at Work : His thesis is that in workplaces where there is not yet a majority or exclusive representative, collective bargaining on behalf of a minority union is fully protected by NLRA.

i. Board should be able to order employers to bargain with an informal group of employees.

ii. History of minority unions1. 95% of original Steel Workers Agreements were for members only

unions as were 64% of UAW auto industry contracts2. At the time Wagner Act was passed, there were a lot of minority

union organizing & recognition3. Steel Workers and UAW eventually grew into the largest majority

unions.iii. Statutory Arguments

1. Preamble and §7a. Foundational components of the statute say that every

worker should have full freedom of association to designate representatives of their own choosing & to engage in CB.

b. §7 mentions nothing about a distinction between majority & minority representation

2. §9(a) exceptiona. §9(a) says that union that gets majority support of all

employees shall become the exclusive representative of all those employees

b. §9(a) says nothing about when there is not a majority. 3. §8(a)(1) says that employers cannot interfere with employees’

rights to bargain collectively under §7. Since employees can bargain through “representatives of their choosing” under §7, refusal to bargain with these representatives violates §8(a)(1).

4. §8(a)(5) obligates employers to bargain with selected representatives, “subject to §9(a).” This means that until there is a majority union, obligation to bargain with minority union exists.


a. Legislative history. §8(a)(5) draft would have explicitly excluded minority unions but this was rejected by Congress

iv. Conclusion: There is no limitation anywhere in the statutes stating that in places where there is no majority union, employers are not entitled to bargain with minority unions.

f. Dick’s Sporting Goods, NLRB Advice Memorandum , Case 6-CA-34821 (June 22, 2006) : Employee Council exists to bargain on behalf of its members but also intends form a traditional Steelworkers Union. General Counsel: Board finds a provision for majority rule that rejects other forms of representation in §9(a). (Contrary to Morris’ belief that §9(a) is not exclusive of other representation). Board here has a less sanguine view of minority unions. They consider it an impediment to the formation of majority unions as employers will play unions off one another. This will prevent CB.

i. Another view of Legislative History. Congress rejected a clause that would have explicitly granted minority rights to bargain.

ii. §8(a)(5) is based on §9(a) rights which are based on majority status.g. Policy:

i. If statute is ambiguous, we should leave it to the Board to decide but Board flips every few years.

ii. Board viewed minority unions as an impediment to exclusive majority representation because :

1. Political signaling- President Bush Board decisioniii. Minority unions are good

1. Test case for majority unions for everyone involved. BUT, this may not be true because minority unions are powerless

2. Employees can have experience with collective action and voice3. Perhaps a minority caucus within a union would be good4. Good from perspective of employee choice

iv. Minority unions are bad1. Employer would have to sit down with 100 members only unions

and bargain over the same things over again2. May not lead to majority unions3. Could cause hierarchy and inequality among employees

v. Could amend the statute to allow for minority unions but impose restrictions i.e., union must represent at least 255 in bargaining unit, restrict subject of bargaining, distinguish between strength of minority unions

B. New Forms of Worker Organizing: The Fair Labor Standards Act and Title VIIa. Employment law statutes facilitate organizing by workers and offer a solution to

the slowness of enforcement of employer retaliation under NLRA and the lack of control workers have over enforcing law on their own. Employment law can be used to ensure workers have the things labor law guarantees.

b. Benjamin Ian Sachs, Employment Law as Labor Law , 29 CARDOZO L. REV. 2685 :


i. Doctrinal question: Does FLSA protect workers who made demand on their employees or only those employees who file a court action or petition with state agencies?

ii. Monetary Damages: Does FLSA make punitive damages available to workers?

iii. Status: Does FLSA give protection to undocumented workers unlike the NLRA?

Protecting the Right to Organize for Minimum Wage and Overtime Pay c. Lambert v. Genesee Hospital , 10 F.3d 46 (2d Cir. 1993) : Plaintiffs complained to

supervisors that a female employee should receive the same pay as male employee received for being the chargeperson in a printing area. Employee did not complain with specificity that it was sex-based discrimination or what the specific statute at issue was. Plaintiffs sues under FLSA alleging illegal retaliation. Held: Judgment for defendant. Plaintiff did not prove claim for retaliation.

i. FLSA: §215(a)(3)’s anti-retaliation provision makes it an unlawful “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

ii. Title VII retaliation statute states that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”

iii. 2nd Circuit’s strict construction of FLSA: Cause of action limited to retaliation for filing formal complaints, instituting a proceeding or testifying NOT mere complaints to a supervisor

iv. Title VII on the other hand offers broad protection for any sort of complaint. “Opposed any practice” includes complaints to supervisors. FLSA is narrower.

d. Lambert v. Ackerley , 180 F.3d 997 9th Cir. 1999) : Plaintiffs are ticket sales agents for Seattle SuperSonics. Sonics were not paying overtime for hours worked, rather everyone at end of the year would get $2000 for “overtime.” In 1994, Lambert became concerned with she and her coworkers had not been paid for hours worked and DOL tells her that Sonics overtime policy violates FLSA. She inquires and is warned by top management execs that if she continues to press the case she will be fired. Ticket sales agents designate Lambert and Viltz as the “employees’ representatives” for this case. Sonics pays everyone what is owed after they lose the case. Sonics closes ticket office and reopens through a contractor---all employees discharged except the one that never complained. Jury initial awarded $750,000 in lost wages and $12,000,000 in punitive damages. Punitive damages later reduced on appeal. Held: Employer unlawfully retaliated against Lambert under the NLRA for “filing” a complaint with her employer.


i. Rationale1. Antiretaliation clause is remedial & humanitarian in purpose so it

should be read broadly and not in a narrow and grudging manner. Antiretaliation clause is designed to facilitate enforcement of the act through employee complaints (“private attorneys general”). SO, have to protect the ability of employees to come forward and report problems to their employers, otherwise, there will be an atmosphere of intimidation.

2. Language of the §215(a)(3) is fully consistent with the Court’s conclusion. You want to protect employee complaints in whatever way possible.

a. When Congress drafted the language “file” it was because it was aware of the practice in union & nonunion whereby unions were required to file grievances with the employer.

b. “or related to under this chapter” means complaints within the court and to the employer

c. Statutes in the 1930s used to be less wordy, more general & in simple terms

ii. Note: Action Lambert took was a little more formal than Plaintiffs in Genesee Hospital.

Punitive Damages under the Fair Labor Standards Act

e. Travis v. Gary Community Mental Health Ctr., Inc. , 921 F.2d 108 (7th Cir. 1990) : Health Center retaliated against supervisor Travis (testified on Cunningham’s behalf) when Cunningham tried to enforce his FLSA rights. Employer fires Cunninham and Travis. Travis was pregnant at the time she was fired. Jury awarded Travis punitive damages. Held: Travis could be awarded punitive damages.

i. Original FLSA statute did not permit punitive damages. After the amendment in 1977, it says that any employer who engages in retaliation, shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of § 15(a)(3) including reinstatement and so forth. Legal relief is a term commonly understood to include punitive damages.

f. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000): While working at Ramschackle café, Snapp encountered violations of his FLSA rights and was not paid overtime. Jury awarded him $35,000 in punitive damages. Held: The term “legal relief” in the statute does not encompass punitive damages. Punitive damages are already dealt with in a criminal sanction statute.

i. §216(b): “such legal or equitable relief…including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.”

ii. Statutory interpretation: If you have a broad term, and it is used in a statutory provision that delineates more specific terms, you interpret the broad term by look in at the specific terms that surround it.

1. It says plaintiffs are entitled to legal relief i.e. lost wages, reinstatement (all these items are compensatory) and would put


Plaintiff back in position he would have been in had the termination not occurred

2. “Additional amount as determined by liquidated damages” is to cover those damages that are too difficult to determine i.e. cost of being discharged may not be compensable with just reinstatement and backpay

iii. Other remedy. §216(a) allows for criminal sanctions in the form of a fine or imprisonment if someone engages in extreme violation of FLSA activity. §216(b) is not the punitive portion of the statute. Fine is discretionary to a certain limit are included within the criminal section.

iv. Policy: Wouldn’t Congress have been clear if they wanted to exclude a certain remedy

The Fair Labor Standards Act and Undocumented Workers g. Liu v. Donna Karan , 207 F. Supp. 2d 191 (S.D.N.Y 2002) : A class of Chinese

immigrant workers brought a lawsuit against Donna Karan alleging violations of FLSA. Courts have distinguished between awards of post termination backpay for work that’s not actually been done and awards of unpaid wages under FLSA. It is different for someone to say they have worked and not been paid, than for someone to say they were fired for certain activity and the employer should pay them for work not performed. Holding: Employees need provide no discovery as to immigration status, even if there is a confidentiality agreement in place. Rule: Hoffman doesn’t apply to cases where the work has already been completed so immigration status in unpaid wage cases is not relevant.

h. Zavala v. Wal-Mart Stores , 393 F. Supp 2d 295 (D.N.J. 2005) : Janitors are undocumented immigrants seeking minimum wage. Walmart failed to pay minimum wages and overtime. Walmart filed a motion to dismiss the FLSA claim. Held: FLSA applies to undocumented workers even after Hoffman.

i. There is a difference between work not yet performed and work actually already performed

1. Paying an undocumented worker for work not actually performed is like paying the worker for work they should not have been able to do

ii. Under §111(d) of the IRCA, Congress specifically appropriated additional funds for the enforcement of FLSA on behalf of undocumented workers.

iii. Post-Hoffman position of DOL that FLSA covers undocumented workersi. Vigor Ins. Brokerage, Inc ., 25 F. Supp. 2d 1053 (N.D. Cal. 1998) : Post-IRCA but

pre-Hoffman decision. Employer caused employee to be reported to INS for filing an nonpayment of wages claim. She is arrested by INS three days after she has a hearing on the FLSA claim. She sues under § 215(a)(3) retaliation clause. Held: Employer’s reporting of employee to INS is retaliation.

i. FLSA covers undocumented workers because they are employees and not protecting undocumented workers would provide an incentive for employer to hire undocumented workers.

j. Singh v. Jutla , 214 F. Supp. 2d 1056 (N.D. Cal. 2002) : Singh worked in U.S. for 3 years and received no pay. He files a wage claim with state DOL. After Singh files the claim, Jutla threatens to report him to the INS unless he drops the claim.


The case settles, but the day after the settlement agreement is signed, the INS detains him. He files a claim for retaliation under FLSA and California law. Employer claims that Hoffman forecloses Singh’s cause of action. Held: Hoffman is only about backpay remedies under the NLRA; it doesn’t hold anything about other kinds of remedies. It says nothing about work actually performed, nor does it preclude other types of remedies such as punitive damages.

i. The same principle of Sure Tan protects workers under the FLSA. (Patel). Look at the reasoning behind FLSA to determine what its objectives were in terms of both legal & illegal workers.

ii. Including undocumented workers in the FLSA’s coverage is consistent with immigration policy because it discourages employers from encouraging people to immigrate to the U.S.

iii. Policy:1. FLSA is more important than the NLRA. 2. Notion that district courts think Hoffman was decided wrongly3. Greater judicial comfort with individual rights statutes4. It also explains why these statutes are better than the NLRA at

protecting workers rights. But will courts be uncomfortable when individual rights statutes are used to facilitate collective action.

k. U.S. Dep’t of Labor, Fact Sheet 48: Application of U.S. Labor Laws to Immigrant Workers – Effect of Hoffman Plastic decision on laws enforced by the Wage and Hour Division (Dec. 23, 2004) : Undocumented workers still have rights under other labor laws. The DOL seeks backpay for time actually worked, which is different from Hoffman.

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