I. INTRO TO NLRA
I. General Information
A. Employers are covered
1. employers must engage directly or indirectly in interstate commerce
2. to an extent exceeding certain prescribed dollar minima
a. p. 94 of book – lists amounts for different businesses (retail concerns: $500,000 or more)
3. sect. 2.2 of NLRA lists employers excluded
4. S. Ct. added secondary schools run by Catholic church
5. Big category: public employers- federal, state, etc…
B. Employees covered
1. sect. 2.3 lists those excluded
a. agricultural laborers
(i) interpreted narrowly by board- “integral” part of farming before products marketed through normal channels
(ii) this meaning excludes workers who slaughter, package, etc…
b. independent contractor
(i) any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them…(p. 98)
(ii) may unionize, but employer doesn’t have to deal with them as employees for the purpose of the NLRA
(i) full time faculty at large private university
e. confidential employee
1. does not provide substantive rights
2. these terms of employment are to be bargained out through collective bargaining by the parties (wages, hrs, benefits, working conditions, etc)
3. in theory, provides process by which:
a. workers can decide whether or not to bargain collectively
b. governs weapons parties can use against each other
4. NLRA regulates a process by which the terms of employment ultimately get set. But the actual terms are determined by free collective bargaining, if the employees elect to organize and bargain collectively.
1. employee free choice (by majority rule)
2. free collective bargaining
3. industrial peace
1. the charge
a. can be filed by anyone, in the office for the region
b. investigation takes place—interviews of those involved
c. most complaints are disposed of here, but if not, a formal complaint is filed
(i) by General counsel, or
(ii) delegated regional directors (all cases except those involving novel and complex issues)
2. issue complaint
a. board may petition for injunctive relief (10(j))
b. draft complaint (then employer drafts answer)
3. hearing in front of administrative law judge – who makes ruling
4. may appeal ruling to board- must petition in writing to argue orally in front of board
5. decision is usually made by panel of 3 judges
1. board orders carry no sanctions
2. to secure compliance, board must file petition in federal court of appeals
3. “we will uphold a board rule as long as it is rational and consistent with the act…even if we would have formulated a different rule had we sat on the board” – NLRB v. Curtin Matheson Scientific Inc
E. Preemption of state law- Supremacy clause of Const generally preempts state regulation of matters w/I the NLRA **CHECK THIS
F. ultimately a question of congressional intent (because Congress has not expressly spoken, this is mostly an issue of judicial interpretation that is not always consistent)
1. Garmon preemption-
2. State regulation of activity that is either arguably protected by sect. 7 or arguably prohibited as an unfair labor practice by sect. 8 is generally preempted unless such activity can be said to be “merely a peripheral concern” of the NLRA, or, to implicate interests “deeply rooted in local feeling and responsibility.” San Diego Building Trades Council v. Garmon.
a. Peripheral concern/local interest = conduct involving violence or imminent threats to the public order—employer confronted with union violence or mass picketing may have recourse to state court for injunctive relief
b. extended to permit at least limited state regulation of other kinds of intentionally tortious conduct—such as malicious defamation or emotional distress
c. NOTE: if conduct is actually protected by the statute, state is preempted totally—courts, admin agencies, etc, even if purporting to apply federal law (exception only applies when activity is arguably protected)
3. Machinist preemption (more recent)
a. even activity that is neither arguably protected nor arguably prohibited by the federal statute may nevertheless be exempt from state regulation Metropolitan Life Ins Co.
b. fact that NLRA doesn’t regulate some Union or ER conduct may indicated Congress “meant to leave these activities unregulated and to be controlled by free play of economic forced.
c. ex. process of free bargaining—NLRB can’t dictate terms to parties or sit in judgment of substantive terms of agreement
(i) precludes state interference with union’s partial strike, even though such conduct is neither protected nor prohibited
d. LIMIT: does not preclude state enforcement of minimum labor standard of general applicability because they affect union and nonunion employees equally, and neither encourage nor discourage the collective bargaining processes that are the subject of the NLRA
III. HISTORICAL BACKGROUND:
A. Philadelphia Cordwainers
1. “turn out strike” – a combination of workmen strike to raise their wages may be considered from a 2 fold point of view: one is to benefit themselves, the other to injure those who do not join their society. The rule of law condemns both.
2. Reason: means- court appears troubled that employees could group together to with hold labor
B. Commonwealth v. Hunt (overruling Cordwainers)
1. No criminal conspiracy – purpose of closed shop: to give union strong lobbying power with employer, they didn’t want higher wages, they just wanted an agreement that they would only higher members of their union. Wanted employers to agree to a closed shop- only members of the union would be hired for that trade.
i. means: with holding of labor
a. everyone has right to with hold own labor
b. seems people to group together to do the same
ii. ends: if successful, strikers will probably inflict injury on other workers—this is ok, because they are acting in their best interest
2. Court found that there was a combination, but to be criminal it has to have an unlawful objector, an illegal purpose. Or it has to contemplate the use of unlawful means to achieve that purpose. Court found in this case neither requirement was met.
3. Holding: UNION WINS
4. result: battle shifts to civil arena instead of criminal conspiracy
C. Vegelahn v. Guntner (p. 7)
1. Action in equity seeking injunctive relief against the action which the employees were taking against their employers.
2. Here we had a combo of workers engaging in an economic strike to obtain higher wages and in this context the employer got injunctive relief.
3. court holds that combination of employees picketing for higher wages is unlawful because of the means used
4. if the means is unlawful, then the activity is enjoined- why is unlawful? Here it is threat of violence, etc…
5. Rule: the union must be pursuing lawful ends by lawful means
i. Strikes for any ends that are inappropriate or that use tactics considered inappropriate are tortious and thus enjoinable
6. Holding: court enjoined all picketing in addition to the use of threats. Ct. held that the coercion and intimidation found to have occurred interfered with the right of an employer to hire whom it pleases, and the right of workers to enter into employment. Court found the union guilty of an intentional tort. Majority found picketing intrinsically intimidating
7. Majority v. Minority: picketing
i. The big point of difference between majority and minority was the “patrol” or picketing. Majority found the picketing itself was objectionable. Motive or purpose was irrelevant. If they found the means to be objectionable then the purpose was irrelevant. Holmes in dissent found that the picketing wasn’t objectionable. Though Holmes felt that any violence was an issue and enjoinable. But picketing itself was not enjoinable.
ii. Dissent: Holmes in dissent says, importantly, that the picketing was not inherently intimidating. Holmes goes on to say that when several people have combined, he shows temporal damage and cause of action UNLESS the facts disclose some grounds of justification.
a. Holmes equated use of collective force by workers to the corporate use of force to compete
iii. The majority already said the means are objectionable, end of story, doesn’t matter about purpose
8. Note that Hunt and Vegelahn are consistent even though the union won in Hunt and lost in Vegelahn. The Hunt case didn’t involve objectionable picketing.
D. Plant v. Woods
1. organizational strike- union threatened to strike if employer did not make closed shop
i. union wanted employer to force current workers to become union members
2. court focuses on purpose (objective)
i. “Conduct by one union which threatens to act to the economic detriment of an ER who employs members of a rival union is unlawful.
3. After plant is vegelahn good law?
i. Yes still good law b/c there’s a major difference in what the union was doing. Difference in object between the two- vegelahn we had an ordinary economic strike, here we have organizational objective.
ii. The majority sees the difference as- no indication that there was any picketing done in Plant. Apart from the object the means was different.
a. It was the means that the majority found objectionable in vegelahn. Picketing was not an accept
rized in § 8(a)(3).
2. Section 8 sets out limits on employers
i. (1) is broad, the catchall provision that reaches almost any employer activity that doesn’t fit one of the specific subsections
ii. (2)-(5) are narrow, define specific kinds of employer conduct, but a violation of one of these provisions is also a violation of (1).
a. counsel should charge primary violation of section 2-5, and derivative violation of 1
iii. independent violation of 1: violation that does not involve other sections
C. Restrictions on Getting the Message: Union Solicitation
1. Republic Aviation Corp. (p.80)
i. Facts: ER adopted prior to union organizing a general rule against soliciting. “Soliciting of any type cannot be permitted in the factory or offices” – was a broad no solicitation rule. ER fired 4 EE’s –
a. 1 fired for violating soliciting rule by distributing union membership application cards
b. 3 others fired for wearing Union buttons before any union was recognized
ii. Republic aviation was broad rule- wasn’t limited to working hours. Applied to anytime you were on their property
iii. Holding: SC agreed w/ NLRB who found “no solicitation” rule violated 8a1 b/c it restrained, coerced, and interefered w/ EE’s §7 rights. Also, discriminated against discharged EE’s under 8(a)(3) b/c such action discourages union membership.
a. no solicitation rule: employees were entirely deprived of their normal right to full freedom of association in the plant on their own time, the very time and place uniquely appropriate and almost solely available to them therefor. Employer’s rule is in clear derogation of the rights of employees
b. buttons: the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity and the employer’s curtailment of that right is clearly violation of act. They are allowed to wear them on the employers property whether or not they are on working time. Does not infringe on ER rights.
i. There is a presumptive right of employees to wear insignia at work.
ii. HOWEVER employer can rebut it by showing exceptional circumstances that make prohibiting buttons necessary to discipline or productivity
iii. There are cases where employers have won b/c of the perculiar nature of their work- safety reasons
i. Facts: confidentiality rule
ii. Holding: rule violated the NLRA because although it does not expressly forbid protected employee discussions an EE would reasonably construe it to do so.
a. Section 8 encompasses EEs right effectively to communicate with one another regarding self-organization at the jobsite
b. The rule was a violation of 8a1 b/c an EE could reasonably interpret the confidentiality language to restrict her section 7 right to discuss wages and other terms of employment with other EEs or with the union.
c. Bd. held that a rule could be held to violate 8a1 if it either expclitily prohibited section 7 activity, or if employees would reasonably construe the language to prohibit section 7 activity
d. Also held that the mere maintenance of a rule likely to chill section 7 activity, whether explicitly or through reasonable interpretation can amount to an unfair labor practice even absent evidence of enforcement.