Labor Law Outline

Mamat
LABOR LAW OUTLINE
WINTER 2012
 
SALTING
·         Having companies hire new EEs put in by the union to get union support; unions send in their people to get hired.
Town and Country
·         Salts are statutory EEs
·         Electrical company looking to hire new people, refused to interview 10 of 11 union applicants, did hire one but soon after fired him. The union filed unfair labor practice.
·         ALJ ruled in favor of the union, Board agreed
·         Largest Non-Union electrical company – only wanted to hire non-union EEs
·         Were the “salters” EEs?
o   Salters- people paid by the union to work at non-union shops in an attempt to get them to unionize. They are employed by both the union and the ship they get hired into.
·         HOLDING – Board’s construction of EE is lawful, that term doesn’t exclude paid union organizers.
·         Applicants are EE’s don’t have to be hired to be considered EE
·         No moonlighting was the policy
Avoiding Town and Country
·         Adopt hiring policies, put them in your handbook
·         Hire through referrals, so you know personally the person is non-union
·         No union
·         Avoid asking extra information
·         Require onsite applications only so that you only process original apps
·         Policy – if you leave out something significant from work history (i.e. work for union) you can be fired
·         Only accept apps when hiring
·         Require in person interviews that are recorded
HANDBILLING
·         Passing out information, like at the mall in the parking lot passing out flyers telling people not to go into a specific store
·         Handing out pieces of paper, must be truthful statements
·         Definition page 346 (bottom)
Safeco
·         Handbilling allows you to do whatever you want as long as you don’t threaten or harm anyone
·         Protected by publicity proviso as well as the constitution first amendment rights
·         Handbilling is a serious problem no way to really successfully deal with it
·         Not really anything that you can do to stop the right to truthfully advise the public
DeBartolo page 347
·         Publicity proviso 8(b)(4)(B)(ii) – facts stated in the non-picketing appeal must be truthful and that there must be a producer-distributor relationship between primary and secondary employer are of no continuing importance
BANTERING
STRIKE REPLACEMENTS
·         Permanent vs. Temporary replacements
o   Permanent means person has the job until the job disappears or the person is fired
o   Temporary means
·         Temporary strike replacements, then union calls off the strike, the company has to release all the temp replacements and take back all the strikers. The permanent replacements, company under no obligation once they call off the strike to take back the strikers unless the permanent replacement leaves or is fired.
o   If can show strike was precipitated by union’s bad faith bargaining, then possibility that the strikers have lost their reinstatement rights.
·         Difference between hiring subcontractors and permanent replacements
Subcontracting
Fiberboard v. NLRB page 616
·         Sup Ct. said subcontracting of maintenance work ordinarily performed w/in plant by bargaining EE is a mandatory subject ER must bargain on.
·         8(a)(5) doesn’t forbid subcontracting which falls w/in past patterns
Westinghouse page 616
·         Over many years did lots of subcontracting, union tired to stop this said violated 8(a)(5)
·         Board dismissed case – absence of adverse impact on EE; past practice must be part of dynamic status quo
Hawaii Meat Co v. NLRB page 595 – subcontracting work
·         ER didn’t violate 8(a)(5) when w/o bargaining with the union it subcontracted the work of its truckdrivers when a srike was imminent
·         ER had a right to keep business operating in face of a strike and capacity to do so would be undermined were it required to make an offer to the union to bargain.
·         ER under no duty to offer to bargain after a strike starts about a decision to hire replacements for strikers even on permanent basis.
Union Fines and Discipline
·         Sometimes ERs wont allow EEs to come back to work during a strike, if they want to cross the picket line. The best way to do this is to resign from the union then can go back to work.
·         Signed union contract so agreed to union constitution and bylaws.
o   Union can give fines and also discipline EEs
·         The union may say if you cross the picket line then we will black list you so no other union will take you
o   This is an unfair labor practice BUT
o   Both sides make wild practices during campaigns – NLRB has different sets of criteria when it leads up to an election. So probably is acceptable b/c during a campaign how would you prove the union actually can carry through on the threats. The threats to be blacklisted might not be able to hold true b/c the union might not get voted in.
·         Union can’t enforce threats of physical violence by picketing homes of people or summoning the police
o   Picketing an EE would do nothing b/c they can’t influence the boss
·         8(b)(1)(A) – reasonableness of union fines – there is none, this is non-existent whatever the union says is reasonable is reasonable
·         Most union contracts have picket line clauses – don’t have to cross any lawful picket lines of another company (like if delivery scheduled at company where the union EEs are picketing, the driver is a member of another union and he is told to cross the line and make the delivery. Now his union can impose fine upon him for crossing the line.
·         Unions cannot fine supervisors for doing their normal jobs, they can fine them for doing jobs outside their normal job
·         Smart union contracts say that the looser must pay for the arbitration because very expensive, lots of charges
PICKETING
Recognition Picketing
·         Economic pressures to get people to join the union
·         Picketing by non-employees can lead to disruptions in deliveries and blocking customers so may force EE to join and ER to negotiate
o   Not strangers b/c part of same union, Ct. said can’t use strangers b/c can’t force EE to join using economic pressures (strangers have nothing to do w/working conditions)
·         Picketing protected activity as long as legit economic interest
AFL v. Swing
·         Ct. said injunction against peaceful picketing was unconstitutional. NLRB said peaceful picketing using economic coercion against sec. 8(b)(1)
·         Sec. 8(b)(1) – unfair labor practice for labor organization or its agents to restrain or coerce (A) EE in sec. 7 rights or (B) ER in selection of his reps for purposes of collective bargaining.
·         8(b)(7) – picket or cause to be picketed or threaten to picket any employer where a