Labor Law Outline Fall 2010

 Coverage of the NLRA

o Test to see if a particular dispute falls under the NLRA
 1- See whether the dispute affects commerce
 2- See whether the employer is covered
 All public employers are exempted from coverage
 The US (fed govt)
 State and localities
 Railways and Airlines
 3- See whether the employee is covered or the group of employees is
covered
 Removed Groups- groups don’t have protections of the NLRA
but they can still join unions and strike, they just are not covered by
the NLRA
 Agricultural laborers
 Domestic Servants
 Kids employed by their parents; spouse employed by
other
 Independent Contractors
 Do determine between employee and
independent contracts: Right of Control Test:
 If the employer only controls the result of
the work being assigned to a worker; then the worker is
an independent contractor and is not covered by the
NLRA
 If the employer dictates how the job is
carried out, the you have an employee who is covered
 Supervisors- possess authority to act in the interest of
his employer
 Supervisors are not covered bc worry about
divided loyalties
 Excluded groups
 Managerial employees- workers who formulate
management policy, but don’t necessarily have hire fire authority
over other workers (bc of divided loyalties)
 Confidential employees- those with confidential info
about labor and employment policies (however, union salts ARE
covered)
 Graduate/teaching assistants
 Retired workers (but job applicants ARE covered
employees)
 Public universities (private are covered)
 Professors- could be considered managers bc they have
policy-making power and would then be excluded
o Organization and Procedure of the NLRB (national labor relations board)
 Board- basically the ct of appeals

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Labor Law Outline Fall 2010

 Administrative Law Judges (ALJs)- they are below the board and are like
trial judges
 General Counsel- confirmed by senate
 Unfair Labor Practice case begins when some person writes or visits an
NLRB Regional Office and makes a charge against an employer or union
 First before the ALJ- Prosecutor- NLRB; Defendant- person
charged; Person who filed the charge is not part of the case
 If don’t like the result with the ALJ, can appeal to the Board
 Bypass the dist ct
 Can then appeal to the U.S. Ct of Appeals
 
 Employer Interference, Restraint and Coercion
o §8(a)- sets out Employer unfair labor practices (ULPs)
 $8(a)(1)- it shall be an unfair labor practice for an employer- to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in
section 7 (§7- rights of employees)
 Is the general catch-all category- in many of these cases, if an
employer is charged with committing an 8(a)(3) violation, the Board will
also charge the employer with an 8(a)1) violation bc most of the time it will
fall under 8(a)(1) as well as the more specific violation.
o Limiting Organizational Activities on Employer Premises
 Employer rules on the solicitation and distribution of union materials on
Employer Premises:
 Outside Union orgs coming onto employer's premises
 Lechmere v. NLRB
 Facts: Co. has a general no solicitation policy; this
policy on its face and in practice is nondiscriminatory; they kick
everyone out that solicits or distributes materials, not just
unions, for example, even Girl Scouts. A union sets up a
campaign to organize Lechmere employees. They attempt to
handout bills and the Co. enforces its no solicitation policy by
asking them to leave. The union relocates to the grass outside
the building and attempts to pass out fliers, they picket, they get
license plate #s and use it to get names and addresses of
employees whom they send mailings to and call and sometimes
visit at their homes.
 Issue: Whether Lechmere's no-solicitation policy
constitutes a ULP as defined by §8 of the NLRA
 Holding: Does not constitute an ULP bc union
organizers can contact employees outside of work and do not
need to directly contact them to organize.
 Test: Analyze if employer policy (like no
solicitation is an ULP):
 Is the employer rule discriminatory?

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 Does it single out unions or a union

in a particular when banning solicitation and
distribution on employer property?
 Answer was no here, but if the
answer was yes then you would have an 8(a)(1)
ULP and the analysis would be done
 Are the employees beyond the reach of
reasonable efforts to communicate with them?
 Signs and advertising may be good
enough
 If so (cruise ships, resort hotels,
coal miners, etc) then step 3, If no then not an
ULP
 Jean Country Balancing Test
 Balance the degree of impairment
to employees of their §7 rights if access should be
denied against the degree of impairment of the
employers private property rights if access should
be granted. Also consider the availability of
reasonably effective alternative means. (unions
have had to change their ways of soliciting based on
what reasonable effort means according to the court)
 Inside Efforts- Employees' Solicitation and Distribution on
Premises
 Test: Analyze this situation by asking:
 Is the employer rule discriminatory?
 If no, next step
 If yes, then an ULP and done with
analysis
 An employer can violate its own rule
bc they are not an outside group and bc it is the
employer's property there are no rights to balance.
(NLRB v. United Steelworkers)
 Solicitation: Is solicitation banned during work
time (when actually working) or during non-work time
(lunch-time, break , etc)?
 Employer rules banning solicitation
during work time are generally not ULPs
 Employer rules banning solicitation
during non-work time are generally found to be ULP
 Distribution: Is distribution banned in work
areas (on the shop floor) or non-work areas (the break room,
parking lot)?
 When banned on work areas not an ULP
 When distribution by employees is banned
on non work areas it is an ULP

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Labor Law Outline Fall 2010

 Exception: employer can sometimes ban

solicitation in non-work time or distribution in non-work
areas in certain circumstances, for example, can ban
solicitation during non-work time in the retail area
 Note: Bc the rules are more favorable to inside employees,
unions want to try to get a labor organizer hired, this is called salting-
Union salts are covered employees under the NLRA)
 Anti-union Speeches and Publications by Employer
 §8(c)- The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual form,
shall NOT constitute or be evidence of an ULP under any of the provisions
of this Act, if such expression contain NO THREAT of reprisal or force or
Promise of Benefit
 NLRB v. Gissel Packing Co
 Facts: Union (teamsters) starts an organization campaign;
the employer, in opposition tells all employees that:
 In the past, a strike almost made the co go out of
business
 Strike now could mean the plant closing and the
plant is on thin ice
 If there was a closing, given their age and skill,
reemployment opportunities are minimal
 The teamsters are a strike happy bunch and this will
lead to unemployment
 Before the elections, Sent a pamphlet of local
businesses that had gone out of business bc of strikes
 Issue: What can the employer say to employees?
 Holding UNL- Ct used a totality of circumstances test bc of
the employers right of free speech under §8(c). Here, there was a
threat bc "teamsters are strike happy" is not a prediction (which is ok),
so ULP
 Test do determine if employer antiunion speech and
publications ULP: Must look at totality of circumstances to
determine if threat of reprisal, force of promise of benefit
 1- judge the speech in its context
 2- Have to look at the position of the parties,
with background and circumstances under which comments
are made and the general conduct of the parties. An
employer doesn’t have to have any kind of intention to
disclose its speech- so it doesn’t matter whether the employer
intended for this speech to be heard by the employees.
 How to determine if threat (ULP) or prediction
(free speech so ok)?
 To fall under §8(c) the speech or
publication must be BOTH based on objective fact as to
consequences beyond its control AND convey a

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management decision already arrived at to be a

prediction. (Can always give your views and can also
make predictions)
 Ex: if employer says " if this union
comes in here and does what it promises (double
wages) we are going under"
 Depends on whether it is
true after looking at company's balance
sheet; see if they are operating that close to
the margin that they can't afford what the
union is promising- if so it is a prediction bc
it is a management decision already arrived
at and an objective fact as to consequences of
the union
 Interrogation
 Sometimes comes in the form of systematic questioning-
questioning of an employee's membership in a union.
Ex- employer receives letter from union stating that a majority of his
employees are part of the union and he should now start bargaining with the
union. Employer takes each of the employees and tell them that he received
a letter and tells them what it says. He says that it is immaterial whether
they are or are not part of the union but he needs to know how to answer the
letter and he asks them "are you a union member?"
 Polling of employees by an employer will violate § 8(a)(1) of the act
unless one of 5 listed safeguards is observed: (slightly relaxed)
 The purpose of the poll is to determine the truth of the union's
claim of majority
 This purpose is communicated to the employees
 Assurances against reprisal are given
 The employees are polled by secret ballot
 The employer has not engaged in ULPs or otherwise created a
coercive atmosphere
 Causal comments: Interrogation, not itself threatening, is not held to be
an ULP unless it meets certain severe standards:
 The background- is there a history of employer hostility and
discrimination?
 The nature of the info sought- did the interrogator appear to be
seeking information on which to base taking action against
individual employees?
 The identity of the questioner- how high was he in the co.
hierarchy?
 Place and method of interrogation- was employee called from
work to boss' office? Was there an atmosphere of unnatural
formality?
 Truthfulness of reply

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Labor Law Outline Fall 2010

 An employer may not solicit individual employees to participate in anti-

union videos unless:
 The solicitation is in the form of a general announcement that
discloses the purposes of the filming and includes assurances that
participation is entirely voluntary and will not result in rewards
for those who choose to participate or punishment for those who
decline
 Employees are not pressured into making any decision in the
presence of a supervisor
 No other coercive conduct is connected with the solicitation that
may involve a threat of reprisal or promise of benefits
 The employer has not created an overall coercive atmosphere
through other ULPS
 The employer does not exceed the legitimate purpose of the video
solicitation by seeking other info pertaining to worker support or
opposition to the union campaign
 Economic Coercion and Inducement
 What can an employer do during a union organizing drive in terms of
inducing employees with promise of benefits, etc. (promising and
conferring a benefit are both considered ULPs)
 Benefits handed out during a union organizing drive are generally
viewed as an inducement and are viewed as a ULP under §8 (NLRB v.
Exchange Parts)
 Pre-determined customary benefits? Ex- x-mas bonus
 If you have always handed it out, it won’t be seen as an ULP,
but if you now withhold it, it can be viewed as an unfair reprisal
 Have to keep doing what you were doing
 Violence, intimidation, espionage and surveillance
 Violence and threats of violence to deter union organization is a ULP
if with respect to rights of employee
 Surveillance is a ULP (§8(a)(1) violation)
 even if not detected by the employees
 And even if not actual surveillance, but only an impression of
surveillance (video cameras that are not on)
 Employer Domination or Support
o Prohibition embodied in §8(a)(2)- it shall be an ULP for an employer- to
dominate or interfere with the formation or administration of any labor organization or
contribute financial or other support to it
 Test to see if employer dominated:
 The Internal committee is a labor org if:
 There is employee participation
 The org exists in order to deal with employer
 "deals with" means- collective bargaining,
making proposals, where the employees discuss issues with
the employer's reps.

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Labor Law Outline Fall 2010

 BUT if the employee committee deals with

grievances then it does not fall within "dealing"
 Dealing must be related to the terms and
conditions of the employment
 The internal committee/labor org is dominated by employer
and an ULP if:
 Employer domination- issue of control, finances,
support and domination
 Employer creates the committee
 Employer sets up the function of the committee
 If the committees continued existence depends on
employer= employer dominated
 Also a ULP to assist a union (ex give access to one union and not another
even if a mistake)
 Employer Discrimination
o §8(a)(3)- ULP for an employer, by discrimination in regard to hire or tenure of
employment or any term or condition of employment, to encourage or discourage
membership in any labor organization
o For an §8(a)(3) violation there must be:
 An act of discrimination by an employer
 Something that has to do with the terms and conditions of
employment- ex: Can be hiring/firing decision
 Day to day work decisions-ex: Switching an employee to a new
department
 The discrimination must be linked to an
encouragement/discouragement of union membership
 Link usually found by asking:
 Will an activity by the employer discourage/encourage
an employee from union membership?
 Motive- if there is no motive but the discrimination is
sufficient to have a practical effect on encouraging/discouraging
union membership, then the discrimination is still sufficient, and
intent is irrelevant.
 (merely encouraging union membership is not enough for a ULP)
o Hiring halls:
 Ex: Intl Brotherhood of Teamsters case: Union makes an agreement with
an employer stating that when they need to hire temporary workers they will use
the unions Hiring Hall (exclusive- bc can only go outside if the union doesn’t
have workers available). Employee, who is a union member, got a job with
employer without going through the union's hiring hall. The union found out and
called the employer who fired the employee pursuant to the agreement.
Employee brings a ULP charge against the union and employer alleging
discrimination under 8(a)(3) bc the employer's firing him is a practice that tends
to encourage union membership.
 Sup ct - not a ULP bc employee is a union member, the agreement
has a clause which says it will not discriminate against non union members,

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Labor Law Outline Fall 2010

one can belong to the hiring hall without being a union member, the hiring
hall assigns work based on seniority not membership. Ct said discharge of
this employee did not encourage union membership bc the agreement did
not give union members priority.
 For a discharge of a person to be a ULP bc it
discourages/encourages union membership:
 Need To have discrimination
 Need To link the discouraging act to motive--can be
actual motive
 Need to have either actual evidence or the foreseeable
consequences of the act must be discouraging/encouraging
membership
o Union Security Arrangements
 Union security clauses are clauses in a collective bargaining agreement
that describe the obligations of the employees to support the union.
 Examples:
 Closed shop: it is a condition of employment to be a union
member; have to be a union member to be hired; if you lose your union
membership you get fired.
 Ex- exclusive hiring hall where a condition to being in the
hiring hall is being a union member
 A ULP
 Union Shop: have to become a member of the union within a
certain number of days from being hired; after this period of time, union
membership becomes a condition of employment
 Unclear if ULP-depends on definition of member
 Agency shop: usually has the grace period of a union ship
agreement, but instead of being required to become a member within a
certain period of time, you have an option; can either become a union
member or agency fee payer (financial core membership-non member of
union, only pays dues to union)
 Not a ULP (NLRB v. General Motors- bc purpose is to
eliminate free riders- If fired for not paying dues, not a ULP)
 What obligation do unions have to tell their employees abt various options
and how to interact with the law?
 Don’t have to tell them in the union security clause, but unions
have an independent obligation to inform employees that they can drop
back to financial core membership. (unions try to minimize it bc they want
full members, but they are obligated to inform employees in some way- ex:
posting it)
 Unconsenting minorities
 Ex: financial core members do not like the use of their compelled
dues for things not relating to their job or collective bargaining
 Cannot require non-consenting employees (financial core
members) to use union dues on political purposes BUT can require
them to use on collective bargaining agreements.

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Labor Law Outline Fall 2010

 Test: are the challenged expenditures necessarily

or reasonably incurred for the purpose of performing the
duties of an executive representative of the employees in
dealing with the employer on labor management? If so-ok.
Ex:
 Conventions- must pay bc used to elect
officers and need structure to bargain
 Social activities: ok bc incidental to running
a union
 Publications- depends on how much is
related to collective bargaining and how much related to
political activities. If for example 5% of publication is
political, financial core members get 5% back of their fee.
 Litigation: only valid if in furtherance of
local grievance. General lit not required to be paid by
financial core members
 Beck rights- employees right to object- union must inform
their members of this right
 State "right to work" legislation
 State laws (usually in south or west states) that are built
into state constitutions or statutes that ban or limit Union Security
Clauses. (allowed bc §14(b)- express exemption to the preemption
doctrine)
o Protected Concerted Activities and Employer Response
 §7- employees shall have the right to…engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection.
 Concerted typically means 2 or more employees acting together
(can be one acting alone but has to be invoking right grounded in a
collective bargain agreement)
 In order to be a protected concerted activity: (3 elements must
be met);
 Activity must be protected
 Ex- denial of union rep in an investigatory
interview that the employee reasonably believes may result
in disciplinary action is a ULP
 bc the union rep is safeguarding the
interests of the entire bargaining unit and not only that
one employee. This assures all employees that union is
there to protect their rights.
 Activity must be concerted
 Ends/Means test: need to ask:
 Are the ends ok?
 Illegal ends: cannot strike to get
employer to agree to a closed shop (bc closed shop
illegal)
 Are the means ok?

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Labor Law Outline Fall 2010

 Illegal means: work slowdowns,

partial strikes (stay on the job and pick and
choose which aspects of the job to perform),
mutiny (ship-board work stoppage, stop following
orders of captain while out to sea), sit-down
strikes (employees sit down at job and prevent
others from performing their work), rallying
customer boycotts, boycott to compel an employer
to commit a ULP or go against public policy,
sabotage (ex: break equipment),
 Strikes: (concerted refusals to
work)- usually protected concerted activity unless
contrary to law or contract or public policy
 2 types: ULP Strikes
(strikes that protest employer ULPs- ok) and
Economic Strikes (all other strikes-not ok)
 Activity must be the right type of activity
 Effort to change working conditions, wages,
benefits, etc
 Has to be aimed at the right thing and has to be
an attempt to change that thing
 Employer's response to concerted activities legal? (for example in
response to a strike if employer does not reinstate some employees when
strike over). Test:
 Is the concerted activity itself protected?
 Do ends-means analysis (above)
 If not protected activity- employer can take action on
employees engaging in unprotected activity- ex: can pick and choose
who to fire, and firing will not be a ULP
 If it is protected activity-
 Employer cant discharge employees
 Employers cant discriminate against employees on the
basis of their level of participation in the union or concerted
activity
 For example: if employers strike, what can an
employer do when it comes to replacing the strikers? depends on
the type of strike:
 If ULP strike --> protected activity -->
employer cannot hire permanent replacements, may hire
temps
 If economic strike--> not protected--
>employer doesn’t have to reinstate employees, he can
permanently replace them
 What if strike converts from a ULP to an economic
strike or vice versa?

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 Look at time when decision of hiring

replacements was made- if during economic- then
employer doesn’t have to reinstate striking workers. But if
hired after economic strike turned into a ULP strike, then
employer has to reinstate employees
o Lockouts- when an employer closes the plant to employees, usually as a defensive
maneuver against a potential strike or to exert economic pressure on employees
 Ex Buffalo linen case: union campaigning against employer's association
that deals with 8 linen supply co. Union planning a whipsaw strike (strike at one
co. of for a week and then move on to next linen supply co and so on). When
the strike is taking place at one of the co.'s the other 7 co.'s lockout their
employees in anticipation of a future strike.
 Not a ULP bc lockout permitted as a defense against a union
whipsaw strike. Even ok if the other companies lockout their workers and
continue to operate with temps (NLRB v. Brown)
 Can also use lockout in support of legitimate bargaining purpose
(bargain btwn union and co at an impasse, co. feared a strike at their busiest
time so they lockout- American Ship)
 To Analyze Lockouts:
 First thing to ask- Is this a situation where employer has some
kind of bad intent?
 Do you have a situation where an employer is using a
lockout to injure a union? Not just an economic type of pressure
situation. Is it being used to break up the union or evade
responsibility to bargain in good faith w/ union?
 If Board "smells" anything like this, will be a
ULP (see this in Brown & American Ship)
 If intentions are ok, when can you lockout?
 Depends on whether locking out offensively or
defensively; need to categorize
 Offensively--American Ship--can do this when
have bargained to impasse to put pressure on employees
 Defensively: Buffalo Linen & Brown--can
defensively lockout in response to a whipsaw strike tactic
 Can also lockout:
 Where a well-timed strike might cause
excessive damage
 Occurs in seasonal industries
where employer is doing large proportion of
business in a relatively short period of time, e.g.
American Ship and thus, excessive damage could
be caused by strike b/c of seasonal nature of
business; ex Major league sports
 If get wind that union is going to pull a
sit-down strike, can lockout as a defensive tactic

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 If have an integrated business and

worried about a quickie strike being called, can
defensively lockout in order to control timing of that
 What can an employer do in an otherwise legitimate lockout
regarding use of replacements?
 Defensive--employers can use temporary replacements;
saw in Brown where employers used temps in response to a
whipsaw strike
 Offensive--Board says yes; depends on Cir. b/c there is a
Cir.-Split; 7th says unfair and 8th & 6th say it is ok
 Regardless of defensive or offensive; cannot
permanently replace; will be required to reinstate after lockout
ends
o Plant Closings and Runaway Shops
 Bonfide shut down-A company can always completely close down even if
motivated by anti-union animus without committing a ULP.
 Conditional shutdown- employer shuts down and then will reopen when
employees renounce their union status-ULP
 Runaway shop- when employer shuts down in 1 location and reopens in
another area to escape unions- ULP violation of 8a3
 Test to see if closing or runaway shop ok:
 Might have a situation that looks like bona fide shut-down of a
single entity--make sure not runaway shop or conditional shutdown--if
not, then no violation of 8(a)(3) so no ULP
 If clear that it is a partial shutdown (not bona fide shut down),
jump into Purpose and Effect Test
 Partial closing violates §8(a)(3) if the purpose of closing
is to "chill" or relax unionism in the plant and if the employer
may have reasonably foreseen that such a closing will have that
effect. NEED BOTH to be a violation of 8(a)(3) = ULP.
 If not clear whether it is complete or partial closing, then use
interest in relationship test:
 See whether employer has interest in another business
that is sufficiently substantial to give promise of his reaping a
benefit from the discouragement of unionization in that business-
partial
 Occupies a relationship to the another business which
makes it realistically foreseeable that its employees will fear that
such businesses will also be closed if they persist on unionizing.
 If then determine that partial- do the purpose
and effects test
 If complete close then no ULP
 Representation
o §8(a)(4)- anti-retaliation provision- makes it a ULP for employer to go after
employee for filing a charge or giving testimony

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o §8(a)(5)- a ULP for an employer to refuse to bargain with representatives of his

employees (union)
 Ways a union can become a representative of a group of workers:
 Election-run by NLRB
 employee, employer or union files a petition for an election
with a Regional Office. A hearing is held and the regional office
investigates (test below). Need consent from the union and employer
and Employees (including economic strikers, ULP strikers and
permanent replacements) vote either yes or no for rep and then the
regional office issues a certification. Union has irrebuttable
presumption of maj for a year.
 What does the board need to check to see if they
can have an election:
 Board checks if it has jurisdiction over
the labor dispute (above)
 NLRA doesn’t cover public
employees, RRs, airlines, agricultural workers,
domestic servants and indep contractors
 Both employees and employers
must be covered
 Dispute has to affect commerce
 Union needs to claim to rep an
appropriate bargaining unit
 The employees need to have a
community of interest: unit determination:
 Employees have Similar
economic interests with respect to the job-
ex: use similar wage scale, terms, conditions,
similar work, share supervisors, etc
 History of collective
bargaining (if any)-ex:
 have they been informally
bargaining together with their employer
 Extent of employee
organization- not given controlling weight
 Restrictions on unit determination
within the statute
 §9(b)(1)- cant have
professional and nonprofessionals in same
bargaining unit unless the professional
employees agree with it.
 §9(b)(3)- security guards
can't be in a unit with other employees (bc
employer needs to rely on guards during
strikes)
 Needs a showing of interest

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 Means that at least thirty percent

of the employees in the petition have to indicate
that they want this unit on the ballot
 Elections free of ULP charges on both
sides- Must be no pending ULP charges/proceedings
relating to this organizational activity, bc when the
NLRB has an election it wants laboratory conditions
(nothing out of the ordinary-also no election speeches
or company time to groups of assembled employees 24
hrs prior to election)
 Must have no election bar- a valid
election or certification serves as a bar to future
elections for 1 yr or longer if the employer is acting in
bad faith
 Cant have a contract bar-
 K (collective bargaining agreement
in writing which as been signed for a set duration)
will operate for the life of the K or for 3 years,
whichever period is shorter- so rival union cannot
file a petition
 exception of the 90/60
window period- there is a 30 day period
before the last 60 days of the K to file a
petition by a rival union.
 Exception: K will not be a bar to a
petition if the collective bargaining agreement
contains a really unlawful provision
 Post elections:
 No way for a party who feels aggrieved by
the election to get directly into fed ct.
 Only way is for union to file an 8a5
claim bc employer not bargaining
 Then employer can also
claim that the union is not a lawful bargaining
unit (no req that union be name lawful rep via
the election)
 Through an ULP proceeding
 When a union approaches an employer with union cards
and asks the employer to recognize them. Once cards presented to
employer, he has to bargain. If he refuses, the union may file a charge
of ULP against employer. A remedy for this charge can be an order by
the Board saying that the union is now the rep (even if majority of the
employees did not sign the cards) and employer must start bargaining
(without an election)- not as reliable as elections
 Employer can voluntarily recognize a union as a representatives-
union collects signed cards indicating a maj support and goes to the

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Labor Law Outline Fall 2010

employer and says I have maj support, bargain with me, and employer
recognizes the union as the rep of his employees. Employer has a duty to
bargain upon recognition of union.
 Then the NLRB posts a notice at employer's business
telling the employees they have 45 days to file a decertification
petition or to file a petition for election with a rival union
 If nobody files petition then union gets irrebuttable
presumption that it has maj support for a reasonable period of
time (3-6 months)
 If someone does file a petition then they have an
election
 Employer poll- run by employer-must meet certain reqs, such as
secret ballot, so as not to be an ULP. If poll is taken and union does have
maj then employer obligated to bargain.
 How union can lose rep status:
 When an employer can withdraw recognition without
incurring an §8(a)(5) violation- for election after one year, for ULP
situation after 3-6 months, K then during window period
 When an employer can take a poll to test an incumbent unions
strengths to see if they are really the maj
 When employees or an employer can file a decertification
petition- within 45 days
 Hypo: day 1- election by NLRB, union wins 8-5. day 7-
employer gets a letter signed by 9 employees saying they disavow the
union; employer then refuses to bargain with the union. Is this a
ULP? Yes, §8(a)(5) violation. After an election, the union enjoys an
irrebuttable presumption that it is still a majority union for 1 yr, so it
doesn’t matter if now not the maj. Or that employees signed the letter.
 A year passes, K is created, in the 2nd yr of K the employer
doesn’t believe that a maj is rep by the union and wants to test it. Can
he take a poll or withdraw recognition?
 Union enjoys an irrebuttable presumption of maj
status for the life of the K or for 3 years (whichever shorter),
employer can only get a rival union to file a petition during the
30 day window period 60 days prior to the end of the K
 What if not an election of K situation and employer wants
to test maj support?
 In order to no longer bargain employer needs to be
sure that the union has in fact lost maj
 To take a poll have to have evidence that union in
fact lost support (actual loss- anti-union petition signed by maj
or workers or first hand statements by them) or have good faith
doubt that union still reps a maj of workers (evidenced by 30%
employees filed decertification petitition or a lot of replacements
or high turn-over, or numerous comments, etc.)
 Union Unfair labor practices

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Labor Law Outline Fall 2010

 §8b1: ULP for labor org to restrain or coerce employees in the exercise of the
rights guaranteed in §7
 §8b2: unions cannot cause or attempt to cause an employer to discriminate against
an employee
 §8b3: ULP for union to refuse to bargain
 §8b4: ULP for union to engage in secondary pressure
 §8b5: ULP to require employees to pay excessive union dues
 §8b6: ULP for unions to featherbed- when union tries to get employer to pay
union members for not working
 §8b7: picketing regulations
o Picketing and union discipline
 Regulation of coercive methods in picketing
 If it is picketing plus something else, then do an 8b1 analysis
and if found to be coercive then ULP
 picketing plus violence or threat of violence (even if
picketing itself is peaceful but there is contemporaneous violent
conduct) is an ULP bc violence coerces or restrains employees from
exercising their §7 rights.
 Picketing plus blocking- ULP
 Picketing plus language- if language involves fraud, libel
and misrep then ULP
 Picketing plus silent intimidation- if coercive then ULP (ex:
writing down of license plate numbers can be seen as coercive but if
used to mail literature, than not a ULP bc not coercive)
 Mass picketing cases: depends- having a lot of people is enough to
restrain or coerce employees form exercising their §7 rights so can be an
ULP - circuit split
 Union fines and discipline as coercion
 Unions can impose discipline and fines on their members and
enforce them in court without committing an ULP- it is not considered
coercing or restraining employees' §7 rights
 Problem with this: Full blown members subject themselves
to union discipline whereas financial core members don't they just pay
fees
 Union rules that restrict a member's right to resign is an
ULP bc coercive if not free to leave
o Organizational and Recognition Picketing
Picket=mobile patrol with signs, needs some element on confrontation
 Recognitional picket- intended to put pressure on the employer to recognize the
union and start bargaining with it by putting economic pressure on the business
 Organizational picket- intended to put pressure on employees and persuade them
to join the union
 §8(b)(7)- ULP for a union to take part in an organizational or recognitional picket
if not the certified representative of the group of workers. Certified (through
election) unions are exempt. (Does not exempt lawfully recognized unions-
through voluntary recognition by employer, through poll, etc.)

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Labor Law Outline Fall 2010

 Analysis to see if picketing or THREAT of picketing is a ULP: 3

situations
 (A)- uncertified union cannot engage in organizational or
recognitional picketing, where the employer has lawfully
recognized another union (certified by election or ULP
proceeding) and a question concerning rep may not be
appropriately raised (bc irrebuttable presumption of majority
status- bc of K bar, 1 year election bar, etc)
 When there is a certified union in place, an outside
union can only organizationally picket when no election bar,
K bar. Can set up organizational picket during the 30 day
window.
 (B)- ULP for an outside union to organizational or
recognitional picket when there has been a valid election within
the past 12 months (after an election, the certified union gets a 1yr
irrebuttable presumption of majority).
 (C)- If not in situation (A) or (B), the uncertified union has
only a reasonable amt of time, not to exceed 30 days from the
beginning of the picketing, to go file a petition for election at the
regional office.
 Employer can file a request with the board for
expedited election (board will skip the hearing) saying that a
reasonable amt of time has passed.
 This allows employers to get out of blackmail
picketing (union forces employer to recognize the union
as his workers rep or they will picket enough to shut
the employer down)
 What if a threat to picket and not an actual
picket? Board looks to see if it is a live threat, if so, the
30 day time per starts running the day the live threat is
made. If the union retracts or files a petition within 30
days then no ULP.
 Exception: informational picketing is exempted if meets
following reqs
 Needs to be addressed to the public
 The message of the picketing has to be either
that the employer doesn’t employ union members or
have a K with a union
 The info has to be truthful
 The picket cannot induce other employees to
stop delivering or picking up goods or performing
services
 Hypo: 3 employees signed union cards. Union goes to employer who
refuses to recognize the union as the rep. The employer than transfers one
of the employees to destroy the maj status. The union starts a picket with
the objectives: recognition, scaled wages and ULP protest. The picket starts

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Labor Law Outline Fall 2010

on Feb 8. On March 1 the union files an ULP charge against the employer
for the transfer of the employee. Then on March 11 the picketing stops and
on March 22 the union files a petition for election. Has the union still
committed a ULP despite the employers ULP? (blinne construction co.
case)
 Yes. There was recognition picketing. It was not a certified union
so falls under §8b7 analysis. Not situation (A) bc there was no
certified union in place. Not situation (B) bc there was no election
within 12 months prior. So means we are in situation (C). The picket
lasted more than 30 days. Was it saved by the exception for
information picketing? No, the object of the picket was not
informational. Union violated §8b7.
 §8b7 applies regardless of employer ULPs or other equities of the
case.
 Hypo: union pickets for more than 30 days before filing a petition. The
object of the picket was recognitional but the purpose was to advise the
public that the co was not unionized and the picket did not stop any
deliveries. Does this picket fall under the (C) exception?
 Yes, meets the four reqs. An informational picket can be either
recognitional, organizational or both.
 Area standards picketing (picketing to point out that the employer pays
non-scale/sub-standard wages) does not fall under the act, so is not a
violation.
 Secondary Pressure- union pressure aimed at a third party, with whom the union has no
labor dispute, in an attempt to dissuade that third party from dealing with the primary party,
with whom the union does have a dispute.
o §8(b)(4)-
 i- ULP to engage in or induce employees to persuade others to strike or
refuse to handle goods.
 ii- ULP to engage in activity of threatening, coercing, or restraining some
other person engaged in commerce with the following agendas:
 to force employer to join some organization or enter into any
agreement
 to do one of these things with the object of forcing one person to
cease doing business with any person
 ULP for a union to engage in one of those two activities in order to
force any employer to recognize them when another certified union already
in place
 Jurisdictional disputes btwn union
 Not a ULP to refuse to cross picket lines. Informational picketing is an
exception.
o Primary-secondary distinction
 Need to ID players
 primary employers are: employer with whom the union has a
labor dispute. Employees of the primary are primary employees.

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Labor Law Outline Fall 2010

 Secondary employer: supplier/customer. Neutral party with

whom the union doesn’t have a dispute, but whom the union is trying to
force to stop doing business with the primary
 Then ask if calling for a picket violates §8(b)(4) by being a secondary
picket
 Look to see if union is attempting to persuade employees to
join union or if the union is trying to get a supplier to stop supplying, if
right type of action then
 must ask if the union is picketing in a way that forces/requires
the secondary to cease doing business with primary
 If the picketing or activity is on the premises on the primary,
then it is primary activity and protected. The picketing activity has to
be in front of a secondary for it to be a secondary activity and therefore
an ULP
o Common Situs Problem-
 if the picketing is in front of secondary and primary (ex: primary is a
ship that pulls into dock which is a secondary)
The secondary can be treated as a primary employer and therefore not a
ULP if 4 things occur:
 The picketing is limited to a time when the primary is on the
secondary's premises
 Primary's employees need to be there when picketing
 If primary employees not there then the secondary employees
are considered the target and that is a ULP
 Primary and its employees must be engaged in normal business at the
primary situs
 The picketing is reasonably close to the primary situs
 The picketing clearly discloses that the dispute is with the primary
 If picketing is at a neutral third party site where both primary and secondary are,
have to see who the activity is aimed at. If aimed at secondary then ULP
 Primary employers may create a separate gate for Secondary's on their
premises and if the union pickets that gate it is an ULP only if all three
factors below are met, if not then can picket and wont be a ULP: (test
doesn’t apply to a separate gate on a neutral third party's site- use main test
above)
 The gate is separate and marked
 The work being done by those independent contractors or whoever
else is using the gate has to be unrelated to the normal operations of the
primary employer
 Ex building a new building. (delivering goods, supplying
regular maintenance doesn’t count)
 The work that the independent contractors are performing has to be
of the kind that doesn’t necessitate curtailing regular operations.
 If the work can only be done when the plant is shut down, then
it doesn’t meet this prong and the employees can picket.

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Labor Law Outline Fall 2010

o The Ally Doctrine- secondary is allied with the primary such that they are
treated as primaries and therefore picketing them is not a ULP. Must meet 3
reqs:
 Secondary must be doing struck (affected by strike) work
 Secondary must be receiving economic benefits from performing the
struck work
 Must be some type of arrangement between the primary and
secondary
 Affirmative alliance
 Some kind of express agreement btwn the two or some kind of
integration btwn the enterprises
 Hypo: Primary has service Ks under which it is obligated to repair
typewriters. Their service personnel strike and picket. Primary now has no one
to fix the typewriters so they tell customers to find an independent service
provider to fix their typewriters and the primary will reimburse them of the cost.
Customers either sent the primary their receipt or the bill to be paid directly by
them. The service personnel who were on strike picket the independent service
providers who are service the primary as well. Is this a violation of §8(b)(4)?
 Here the independent contractors (secondary) were doing struck
work
 They received economic benefits (were being paid by the primary)
 Here the arrangement was with the primary and its customers,
however the secondary knew they were doing struck work and knew of the
arrangement bc the bill was paid by the primary.
o Consumer information provisio- ok for unions to advice the public by means other
than picketing that products are being produced by the primary and distributed by the
secondary as long as the delivery is not interfered with or work stoppage isn't induced
(following the product with the goal of getting the consumer to stop buying the product
from the secondary by means such as newspapers, handbills, ads, etc)
 Exception: If only following struck product and trying to convince people
to not buy the struck product, then picketing ok as long as the secondary is not
suffering substantial loss (for ex: if the secondary only sells the primary's struck
products, then picketing not ok (will be an ULP) bc store will have to cease doing
business)
o Coercion of Secondary Employees
 Test:
 Does the union activity fall under §8b4(i)
 Is the union here encouraging any individual employed
by any person to refuse to work or handle certain goods? If so
violation, if no next step
 Fall under §8b4(ii)
 Has to threaten, coerce or restrain the employer with an
object of either
 to force employer to join some organization or
enter into any agreement

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Labor Law Outline Fall 2010

 to do one of these things with the object of

forcing one person to cease doing business with any person
 ULP for a union to engage in one of those two
activities in order to force any employer to recognize them
when another certified union already in place
 Jurisdictional disputes btwn union
 If so, then violation.
 Hypo: union calls a strike and pickets against the primary. Union also
goes to the managers of the secondary employer and requests that they do not
handle anymore of the primary's goods, and threatens to begin a consumer info
campaign-hand billing.
 Apply test.
 Does not fall under (i) bc union going to managers to have them
make a certain managerial decision to stop dealing with primary, not going
to employees
 There is a Diff between appealing to employees to stop
handling goods and appealing to management to make a managerial
decision. Also ok to put pressure on consumers.
 Does not fall under (ii) either bc the union's action is not a threat
bc what they are threatening to do something that is legal (under consumer
information proviso). Also hand billing is considered less coercive than
picketing. So not a violation
 Featherbedding
o §8(b)(6)- ULP for a union to cause or attempt to cause an employer to agree to or
to actually pay or deliver any money or other things of value for services which are not
performed or going to be performed in the future.
 Only covers payment for doing nothing. If the employee is doing
something (even if it is work that is not necessary, or work that has already been
done and is now being duplicated or make-work like using a dry brush to paint a
wall) then the employer must pay.
 Min crew req are ok, even if they aren't needed
 Exceptions:
 Paid vacation policies, paid lunch hrs, severance pay
 
 
 
 
 
 
 
 
 
 
 

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