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Labor Law
West Virginia University School of Law
Lofaso, Anne Marie

Chapter 7: Regulation of the Process of Collective Bargaining

A. The Requirement of Good Faith: Bargaining Positions and Practices

A.      Models of the Bargaining Process
a.       NLRB v. Insurance Agents’ International Union (1960)
i.      Facts:
1.       Employer and Union began negotiating a new contract to replace the existing agreement that was going to expire in two months.
a.       Bargaining lasted 6 months and then the terms of the new contract were agreed to.
b.      IT IS NOT QUESTIONED THAT, IF IT STOOD ALONE, THE RECORD OF NEGOTIATIONS WOULD ESTABLISH THAT THE UNION CONFERRED IN GOOD FAITH WITH THE PURPOSE AND DESIRE OF REACHING AN AGREEMENT WITH THE EMPLOYER.
2.       Employer filed an 8(b)(3) charge for refusing to bargain collectively against the union.
a.       Basis:
i.      Actions of the union and its members outside of the conference that occurred after the old contract had expired.
ii.      The Union, when the K expired, announced that union members would participate in a “Work w/o a K” program that meant they would engage in certain planned, concerted on-the-job activities designed to harass the company.
ii.      Reasoning:
1.       Duty of Management §8(a)(5):
a.       The duty to bargain in good faith by management under §8(a)(5):
i.      Purpose is making effective the duty of management to extend recognition to the union.
ii.      Corollary of its duty to recognize the union.
b.      Good faith was written in b/c of the tension b/w Congress not caring about substantive terms and the principle that the parties are bound to deal w/ each other in a serious attempt to resolve their differences.
2.       Duty of Union §8(b)(3)
3.       POLICY:
a.       To impose a mutual duty upon the parties to confer in GF w/ desire to reach an agreement.
i.      Wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution to their differences.
b.      The presence of economic weapons in reserve, and their actual exercise, is part and parcel of the system the NLRA recognized.
c.       Held:
i.      Inferring a lack of GF simply b/c (not from union’s deficiencies at the bargaining table) of the union’s attempts to exert economic pressure.
1.       If so, the B (in guise of determining GF or BF) could regulate what economic weapons a party might use, and thus the substance of the agreement, against policy of NLRA
4.       The use of economic pressure is not itself inconsistent w/ the duty to bargain in GF.
a.       The employee conduct here was not a protected concerted activity.
i.      The ER could have discharged or taken other appropriate disciplinary action against the employees participating in these “slow down” “sit-in” tactics.
b.      Union activity that is not protected against disciplinary action does not mean that there is a refusal to bargain in GF.
b.      Notes and Questions
i.      The NLRB lacks the authority to attempt to equalize disparities of bargaining power.

Chapter 8: Weapons of Economic Conflict: Strikes, Boycotts, and Picketing

Strikes and Employee Countermeasures

A. Strikers and Replacements

A.      Economic Pressure and the Duty to Bargain
a.       Insurance Agents:
i.      Use of economic weapons is not inconsistent w/ GF bargaining and SHOULD NOT be regulated through §§8(a)(5) & 8(b)(3) of the Act.
1.       IA: unprotected partial strike was held not to violate §8(b)(3)
ii.      PRINCIPAL STATUTORY VEHICLE FOR REGULATING BARGAINING WEAPONS:
1.       §§8(a)(3) and 8(b)(2)
iii.      A conventional peaceful strike does not suspend an employer’s duty to bargain.
B.      Strikers and Replacements
a.       The Mackay Radio Doctrine
i.      NLRB v. Mackay Radio & Telegraph Co. (1938)
1.       Held:
a.       The strikers remained “employees” under §2(3) of the Act and evidence supported the Board’s finding of discrimination in the denial of reinstatement to the five strikers (who had been prominent in union activities).
b.      It was not a ULP to replace the striking employees with others in order to carry out the business.
c.       ER is also not bound to discharge those hired to fill the place of strikers when strikers elect to resume their employment.
d.      NOT ULP:
i.      Assuring replacement workers they can be permanent
ii.      Reinstate only as many strikers as there are places to be filed.
1.       HERE, the ER committed a ULP b/c he discriminated in restating EEs b/c he kept out some of them for being particularly active the U.
ii.      Note: Reinstatement Rights of Replaced Economic Strikers
1.       The NLRA does not prohibit an ER from hiring permanent replacements.
2.       Replaced strikers remain EEs and they retain certain preferential rights to reinstatement.
a.       NLRB v. Fleetwood Trailer Co. (1967)

ng agreements that involving reinstating strikers
1.       Belknap (1983)
a.       Held:
i.      A damages action for breach of K and misrepresentation filed by ousted “permanent” replacements against their ER is not preempted by the NLRA
ii.      Left open:
1.       Whether an award of specific performance (i.e. reinstatement) would be preempted.
iii.      A ER may make a promise of continued employment subject to settlement w/ the union w/o sacrificing its Mackay right to retain the replacements at the strike’s end.
c.       Note: ULP Strikes
i.      THE MACKAY RULE ONLY APPLIES TO ECONOMIC STRIKES
ii.      ULP Strike:
1.       A strike called or prolonged b/c of one more ER ULPs.
a.       Where a strike is caused by both a bargaining impasse and a ULP, it is deemed a ULP strike as long as the strike was IN PART MOTIVATED BY THE ULP.
b.      If an ER commits a ULP during an econ. strike, a finding of CAUSAL CONNECTION b/w the ER’s conduct and continuation of the strike converts it into a ULP strike, EVEN IF it was not the sole or even predominant factor in prolonging the strike.
iii.      Determining the “Cause” of a Strike is Crucial:
1.       REPLACEMENT AND BACK PAY
a.       ULP:
i.      An ER is required to displace even PR to make room for ULP strikers who have made an unconditional application for reinstatement.
1.       If the ER does not, the strikers are entitled to back pay from unconditional application to return.
b.      ECON:
i.      No “bump” for strikers, no back pay absent a violation of Laidlaw rights.
2.       VOTING
a.       ULP:
i.      ULP strikers can vote irrespective of the length of the strike
Definition of Employee