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Labor Law
Stetson University School of Law
Brudney, James J.

I. Introduction and Brief Historical Perspective
a. The Meaning of “Concerted Activity” and the Collective Bargaining Agreement

NLRB v. Washington Aluminum

Facts: The employees left work without permission on claims that it was too cold to work and were discharged. A complaint was filed with the Board. At a hearing, evidence indicated that, prior to the day of the walkout, the employees had complained about the heating situation. The Board found that the employees’ conduct was a concerted activity to protest the company’s failure to supply adequate heat in its machine shop, that such conduct was protected under § 7 of the National Labor Relations Act (Act), and that the discharge amounted to an unfair labor practice under § 8(a)(1) of the Act. The employer was also ordered to bargain collectively with the union, the status of which as majority bargaining representative turned on ballots cast by four of the seven workers. The court of appeals refused to enforce the orders. On certiorari, the Court found that the Board correctly interpreted and applied the Act. Because the employees had no bargaining representative at that time, they were not required to make a more specific demand in order for the activity to fall under § 7 of the Act. The walkout grew out of a “labor dispute” within the plain meaning of § 2(9) of the Act.

Issue: Can you spontaneously walk out on the job without making a demand?

Holding & Reasoning: The statement made by the foreman made the actions by the worker concerted. It was concerted activity protected under §7 and the employees should therefore be reinstated.

Were the two complaints previously made by the employees concerted activity?
No, because the employer had no knowledge of the concerted activity. If the employer had known about it then it would have been concerted.

Rule: Regardless of how or when the complaint is made it is considered contemporaneous.

i. Two Sides to Labor Relations
1. Organize, strike, picketing, boycott, and CBA; OR
2. Lockout, business needs, free speech, and management rights.
ii. Hypothetical
1. What if all the workers brought their own heaters and continued to work through the cold but they bring attention to their dispute by calling a local news station?
a. This is concerted activity that is protected under §7 so long as it is not disloyal. If it is found to be disloyal then it is not protected.
b. The NLRA, Its Origins and Administration

NLRB v. Kentucky River Community Care

Facts: A labor union sought to represent a group of employees, among whom were 12 registered nurses in a residential health care facility. The health care facility objected to the inclusion of the registered nurses in the bargaining unit, claiming they were “supervisors” within the meaning of 2(11) of the National Labor Relations Act and thus excludible from the protection of the Act. At a representation hearing before the National Labor Relations Board (NLRB), the NLRB held that the registered nurses were not supervisors and included them in the bargaining unit. The union won the representation election, but the nursing facility refused to bargain with the union. The NLRB’s General Counsel filed an unfair-labor-practice complaint upon which the NLRB granted summary judgment and ordered the nursing facility to commence bargaining. The United States Court of Appeals for the Sixth Circuit, in denying the NLRB’s petition for enforcement of the bargaining order in pertinent part, (1) concluded that the NLRB had erred in placing the burden of proving that the registered nurses were supervisors on the nursing facility, and (2) rejected the NLRB’s definition of “supervisor” .

On certiorari, the United States Supreme Court affirmed. In an opinion by Scalia, J., expressing the unanimous view of the court as to holding 1 below, and joined by Rehnquist, Ch. J., and O’Connor, Kennedy, and Thomas, JJ., as to holding 2 below, it was held that
(1) in a representation hearing and unfair-labor-practice proceeding, the party asserting that an employee is a supervisor is held to bear the burden of proving supervisory status; and
(2) the NLRB’s test for determining supervisory status was invalid.

Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., concurring in part and dissenting in part,
(1) agreed that the burden of proving who is a supervisor rests with the party asserting supervisory status, but
(2) expressed the view that
(a) the NLRB’s interpretation of the definition of supervisor was a clear example of an expert agency interpreting a statute in light of the policies articulated by Congress which lay behind the statute, and
(b) in any event, the judgment of the Court of Appeals ought not to have been affirmed, as that judgment rested in part on an erroneous allocation of the burden of proof.


Holding & Reasoning:


II. Organizing the Unorganized
a. Section 8(a)(1): Employer Interference With, Restraint or Coercion of Employees In Their Exercise of Section 7 Rights
i. Rules Concerning Solicitation and Distribution, and Union Access: Balancing Employees’ Section 7 Rights v. Employer Business Needs
1. Solicitation – asking a coworker to sign a card that has you support a Union or remove yourself from a union. It is different from just talking. Also distribution of leaflets and flyers.
2. Basic 8(a)(1) Test
a. “Test for Statements; Rules: Changes in terms and conditions”
i. Does the disputed reasonably tend to interfere with employees §7 rights?
1. A rule preventing solicitation is presumed invalid (cannot be applied on their non-working times).
2. Motive is irrelevant in an 8(a)(1) situation
3. Whether the rule coerces the employees is irrelevant as well. It is an OBJECTIVE test.
3. How does this change common law?
a. Bridging an employers private property rights.
4. Special Circumstances
a. Exemptions to the presumption are where the actions are disruptive. It also depends on specific areas of the workplace. Location of the distribution of union literature has no specific place, employers are more concerned with the time of distribution.
b. It is only unlawful at all times in working areas and working areas while on the clock. This is pre

cts: Employer claims that the union waived its right for the employees to solicit.

Issue: Can a representing union waive the employees rights to solicit?

Holding & Reasoning: No. The court held that so long as the solicitation was done during non-working time it cannot be prohibited and to say that it has been waived would dilute the effect of employee rights. This waiver does not represent a fair kind of representation by the union.

Rule: A union cannot waive employee rights to solicit.

Martin Luther Memorial Home, Inc.

Facts: Had a rule that prohibited the use of “abusive or profane language”.

Issue: Whether rules would reasonably tend to chill employees in the exercise of their §7 rights.

Holding & Reasoning: The court held that the rule was lawful. The court reasoned that it did not violate §7 on its face or inherently and an employer has an interest in maintaining a safe an enjoyable work environment and not employee would construe the rule to mean a violation of §7 rights.

Rule: Ask – Does the rule explicitly restrict activities protected by §7? If it does then it is unlawful. If it does not explicitly restrict then use the following test;

Three Part Test
1. Employees would reasonably construe the language to prohibit §7 activity;
2. The rule was promulgated in response to union activity; or
3. The rule has been applied to restrict the exercise of §7 rights.

7. You can have a rule that prohibits you from talking about wages to customers.

Lechmere, Inc. v. National Labor Relations Board (Derivative §7 Rights)

Facts: Employer barred the union from the employers property. Union claims that this was a violation because it unfairly restricted their access to employees for organizational purposes.

Issue: Was the employers prohibition of union workers who were not employees from coming onto the property to speak with the employees a violation of §7 rights?