NLRA breifs - NLRB v City Disposal Systems Supreme Court...

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Unformatted text preview: NLRB v. City Disposal Systems Supreme Court 1984 Shows what "concerted" means Question When employee invokes CBA right is he/she engaged in "concerted" activity such that he/she is covered by section 7 of NLRA? Facts CBA protected ee's rights to drive safe trucks Worker refused to drive unsafe truck, faced adverse employment action Worker filed ULP charge with NLRB Holding Anytime individual invokes CBA right he/she engaged in "concerted activity" pursuant to section 7 of NLRA Reasoning Section 7 language broad and inclusive Enforcing CBA part of collective process o Wouldn't have CBA right without collective (prior negotiating activities) o Standing on behalf of fellow workers Opposite holding against NLRA purpose o Unions won't negotiate CBAs if individual ees can't invoke rights granted NLRB v. Washington Aluminum Co. Supreme Court 1962 Clarifies "protected" concerted activity Violation of company rules still protected concerted activity Question Was the spontaneous walkout considered protected concerted activity under section 7 of NLRA? Facts Ees complained to foreman about cold working conditions Foreman says "if those fellows had any guts at all, they would go home" One ee decided to go home, other workers decide to leave Foreman persuaded one worker to remain on job Company president says if all ees left, have to terminate NLRB found ee conduct concerted activity protected under section 7, discharge of ees was ULP under 8a1 Court of appeals held not section 7 violation because didn't afford company opportunity to avoid work stoppage by granting concession to a demand; claimed board exceeded power based on 10c Holding Walk-out was protected concerted activity for purpose of mutual aid under section 7 Reasoning Section 7 language broad o Protects concerted activities before, after, at same time as specific demand presented to er to remedy objectionable condition o Opposite interpretation of Section 7 places too large burden on ee, against purpose of NLRA Ees took most direct course without established bargaining procedure or representative Walkout did involve "labor dispute" according to 2(9) Proportionate requirement: conditions of coldness so aggravated on the day, reasonableness not required but make act justified Discharge "for cause" under 10c doesn't cover discharge for engaging in protected concerted activities under Section 7 o Even if company had rule saying ee can't leave work w/o permission from foreman Unprotected concerted activities o Unlawful o Violent o Breach of contract o Disloyalty to er Edward G. Budd Manufacturing Co. v. NLRB U.S. Court of Appeals 1943 Timing indicates er motive Question Did the er Budd Manufacturing violate 8a1, 2 and 3 of the NLRA by discharging employee Weigand? Facts Er created labor organization: "Budd Employee Representation Association," contributed financial support to and directed activities Ee Weigand engages in undesirable work behaviors: drank liquor on duty, came and left work when he pleased, brought "Dutchess" to work Weigand received full pay, five raises while behaving this way Wigand discharged around time he jointed CIO union Weigand disclosed union membership to er Holding Weigand discharged because of work on behalf of CIO became known to plant manager, so er violated 8a1 and 8a3 Er violated 8a2 by supporting "Budd Employee Representation Association" Reasoning Er may discharge ee for good reason, poor reason, or no reason at all so long as provisions of NLRA not violated Violation to discharge ee because engaged in activities on behalf of union Too great strain to assert Weigand discharged for accumulation of offenses given timing Timing important because indicated motive 8a3 violation test J.I. Case v. NLRB Supreme Court 1944 Freedom of contract takes away from power of collective (ees unequal bargaining power) If CB contract conflicts with individual contract, CB contract wins Like ees can't waive rights under FLSA Question Does the use of individual contracts impede on ee's section 7 rights and does er's refusal to bargain on matters addressed in individual contracts qualify as an 8a5 violation under the NLRA? Facts Er J.I. Case offered ees individual contracts of employment (uniform, for one year) Execution of contracts not condition of employment While contracts in effect, CIO petitioned Board for certification as exclusive bargaining representative of ees; company urged individual contracts as bar to proceedings; Board directed election, union certified as exclusive BR Union asked company to bargain, company refused to deal with any manner affecting rights/obligations under individual contracts while remained in effect Company sent circulars to ees asserting validity of individual contracts Holding Er refusal to bargain on the basis of individual contracts violates 8a5, representation to ees by circular letter improper, can be prohibited by board under section 7 Reasoning Trade agreement: negotiation between union and management After CTA made, individuals identified by individual hirings, er selects who to employ/discharge but terms already determined Individual hiring contract subsidiary to terms of CTA, ee may not waive any benefits to defeat or delay procedures of CB prescribed by NLRA Individual contract can't be effective as waiver of any benefit ee would otherwise be entitled to under CTA o Purpose of CTA under NLRA to supersede terms of separate agreements of ees, serve welfare of group Nothing prevents ee of making contract as long as not inconsistent with collective agreement or result in ULP (things not in statutory scope like stock purchase, group insurance, hospitalization) "Jefferson Standard" NLRB v. Local Union No. 1229 Supreme Court 1953 Nexus to labor dispute to be protected Question What qualifies as an unfair labor practice under 8a1 and 8a3 of NLRA? Were the ee's who distributed the handbills discharged for cause under section 10c of NLRA? Facts July 9th Union peacefully pickets at station o Placards/handbills emphasizes er's refusal to renew provision for arbitration of discharges, named union as representative of technicians August 24th some technicians distributed handbills on picket line, around town, mailed to businessmen o Handbills made no reference to union, labor controversy, or CB ("Is Charlotte a second-class city") September 3rd er discharged 10 technicians charged with distributing Aug 24th handbill Holding The August 24th handbill was unprotected by section 7 of NLRA, the ees that distributed it were fired for cause Reasoning Disloyalty to er qualifies as "for cause" Handbill qualifies as disloyalty to er o Made disparaging attack on company's product calculated to harm company's reputation and reduce income o Attack didn't ask for public sympathy or support, continuous and initiated off-duty Attack didn't relate itself to any labor practice of company; made no reference to wages, hours, or working conditions o Attacked management policies which technicians shouldn't be responsible for o Attack doesn't contribute to purpose of NLRA: promote industrial peace and stability Handbill made no reference to labor dispute Handbill made no reference to union Dissent "Section 10c doesn't speak of discharge `for disloyalty'" o Many legally recognized tactics and weapons of labor could be readily recognized as "disloyal" To say actions with absence of labor controversy might be "just cause" for discharge should be unprotected, even if part of "concerted activity" goes against purpose of NLRA: to put labor on fair footing with management NLRB v. Gissel Packing Co. Supreme Court 1969 Tension between section 7 and 8c Duty to Bargain: authorization cards and BO Question Can the duty to bargain arise without Board election under section 9a of NLRA? Are union authorization cards obtained from majority of ees a valid alternate route to majority status? Is a bargaining order an appropriate and authorized remedy when er rejects card majority and commits ULPs that undermine possibility of fair election? Do certain er statements constitute election voiding ULP outside of protection of First Amendment and 8c of NLRA? Facts (No. 585, Sinclair) 1952 plant shit down b/c strike over contract negotiations w/ American Wire Weavers Company reopened w/o union contract, remained unrepresented until 1964 1965 Teamsters began organizing campaign, obtained authorization cards from 11/14 ees o Union notified company represented majority of wire weavers, requested company to bargain with it, offered to submit cards for authentication o Company president declined union request because of card's unreliability, union petitioned for election When company president heard of union drive, tried to dissuade ees from joining union o Emphasized effects of previous long-term strike, said strike could lead to closing of plant, ees might not be able to find employment elsewhere if lost jobs because of strike Before election, president sent pamphlets to ees saying "do you want another 13-week strike," called Teamsters "strike happy" outfit, stressed "hoodlum control," and "Let's look at the Record" listing companies that went out of business because of union demands, reported job loss Union lost election 7-6, filed objection to election and ULP with Board Board finds 8a1 violation under "totality of circumstances," required election be set aside because er's activities foreclosed possibility of fair election; er violated 8a5 by refusing to accept card majority; ordered the company to bargain on request Court of Appeals sustained Boards findings, enforced order in full o Rejected er's proposition that authorization cards inherently unreliable Board's current practice: when presented with majority of signed cards, er doesn't need to grant recognition immediately but can insist on election; if er commits ULP disruptive of election conditions, Board can withhold election or set it aside and issue bargaining order as remedy for various violations Holding Duty to bargain can arise without Board election under 9a Union authorization cards obtained from majority of ees valid alternate route to majority status BO appropriate remedy when er rejects card majority and commits ULPs that undermine possibility of fair election Certain election voiding er statements are ULPs outside of First Amendment, 8c protection Reasoning Unions never limited under 9c to use certified elections as only route to majority status Authorization cards can be evidence for majority ee support, grounds to impose duty to bargain on er under 8a5 Bargaining order appropriate remedy of 8a5 violation where er commits ULP that undermines union support (some minor ULPs don't sustain BO b/c of minimal impact on election machinery) o Board can issue BO without being required to show maintained majority status; if couldn't, allow er to profit from wrongful refusal to bargain, curtailing ees right to freely determine whether desire representative o Bargaining order designed to remedy past election damage as it is to deter future misconduct (if fair election conditions violated, union strength undermined, damage already done) o Board must find that possibility of erasing effects of past practices and ensuring fair election or rerun by traditional remedies is slight, and ee sentiment would be better protected by BO Er's rights to free speech can't outweigh equal rights of ees to associate freely in section 7, 8a1 and 8c o Balancing of rights must take into account economic dependence of ees on ers, tendency of ees to pick-up intended implications of er o Er free to communicate general views about unionism w/ ees as long as communications don't contain "threat of reprisal or force or promise of benefit" o Er can make prediction about effects of unionism if based on objective fact to convey demonstrably probable consequences beyond his control or management decision already arrived at Lechmere v. NLRB Supreme Court 1992 Question What is the relationship between ee rights under section 7 of the NLRA and the property rights of ers? Facts AFL-CIO attempts to organize ees in retail store located in shopping plaza with parking lot jointly owned by er and developer of satellite stores Grassy strip between parking lot and Turnpike public property Non-ee union organizers placed handbills on cars parked in lot Er prohibited solicitation/handbill distribution on its property, asked organizers to leave (happened on several occasions) Organizers relocated to grassy strip, attempted to pass-out handbills to ees entering lot Organizers also picketed intermittently Organizers recorded license plate numbers of cars in ee parking area, sent mailings to ees, made phone and home visits Union files ULP under 8a1 with NLRB for barring non-employee organizers from property, AJL rules in union's favor Holding Non-ee union representatives not protected under section 7 to solicit, distribute literature on ee property Reasoning Section 7 may in limited circumstances restrict er's right to exclude non employee union organizers from his property o Babcock case: where impossible or unreasonably difficult for union to distribute organizational literature entirely off er's premises, distribution on nonworking area (like parking lot) may be warranted o To gain access, union has burden of showing no other reasonable means of communicating organization al message to ees exists or that er's access rule discriminates against union solicitation (heavy burden, narrow exception only applies when "location of plant and living quarters of ees place ees beyond the reach of reasonable union efforts to communicate with them) Board failed to make distinction between organizing activities of ees and non-ees in application of section 7 Er can't be compelled to allow distribution of union literature by non-ee organizers on his property Arguable section 7 claims don't pre-empt state trespass law in large part b/c trespasses of non-ee organizers far more likely to be unprotected than protected Reasonable means of communicating with Lechmere's ees were available to union Reichhold Chemicals Teamsters Local v. NLRB U.S. Court of Appeals 1990 Er's duty to bargain 8a5 violation Question Whether er's insistence on bargaining issue violation of CB clause under 8a5 and 8d Facts 1983 er and union commenced bargaining on initial contract o Parties exchanged proposals and counterproposals; reached agreement on number of matters o Unable to agree on management rights provision or no-strike clause Union members struck Union members permanently replaced, informed would be given preferential hiring rights at er facility Union argued cumulative impact of provisions showed er had no intention of reaching agreement, put forward provisions no self respecting union could accept Holding Er's insistence on bargaining issue not 8a5 or 8d violation under NLRA Reasoning Decision regarding good faith turns on Soule decision: "whether it is to be inferred from totality of er's conduct that he went through motions of negotiating as elaborate pretense with no sincere desire to reach agreement, or if it bargained in good faith but was unable to arrive at acceptable agreement with union" Adamant insistence on bargaining position not itself refusal to bargain in good faith Board may not compel concessions or sit in judgment upon substantive terms of CBAs First National Maintenance Corporation v. NLRB Supreme Court 1981 Question Must er under 8a5 and 8d negotiate with certified representative of ees over decision to close part of business? Facts FNM housecleaning, maintenance, makes contracts with clients o Hires for, contracts with personnel separately for each customer, doesn't transfer employment between locations FNM contracted with Greenpark; Greenpark reduced set fee, cancelled contract because of "lack of efficiency;" FNM work continued, realized losing money, asked for fees to be restored Union conducts organizing campaign with FNM's Greenpark ees, March 31 majority of ees selection union as bargaining agent July 28 FNM notifies Greenpark ees they would be discharged purely as matter of money Union filed ULP against FNM for violating 8a1 and 8a5 ALJ ruled petitioner failed to bargain collectively concerning decision to terminate Greenpark contract and effect of change on ees; recommended bargaining order and payment of backpay Court of Appeals enforced Borad's order; said 8d creates presumption in favor of mandatory bargaining over such decision , rebutted by showing purposes of NLRA would not be furthered by imposition of duty to bargain Holding No, er does not have mandatory duty to bargain over these kinds of decisions under 8d "terms and conditions" Bargaining over effects must be conducted Reasoning Congress left words "wages, hours, and other terms and conditions of employment" without further definition o Didn't want to deprive Board to define in light of specific industrial practices o Had not expectation that union representative would become equal partner in running of business enterprise o Undeniable limit to subjects about which bargain must take place: only issues that settle an aspect of relationship between er and ee o Didn't intend unions to have power over purely economic decisions Mandatory bargaining can only occur if subject proposed is amenable to resolution through bargaining process Management must be free from constraints of bargaining process to the extent essential for running profitable business Balance: bargaining over management decisions that have substantial impact on continued availability of employment should be required only if benefit for labor management relations and CB process outweighs burden placed on conduct of business o Fibreboad: decision to subcontract maintenance work previously done by unit ees: requiring er to bargain about matter would no significantly abridge freedom to manage business Act intended to foster in neutral manner system where conflict between labor and management interests can be resolved Union already had protection under 8a3 against partial closing motivated by intent to harm union If labor costs are important factor, management benefits for bargaining Management may have great need for speed and flexibility in meeting business needs and exigencies, may hinge on confidentiality Mandatory bargaining could thwart managements intentions in manner unrelated to any feasible solution union might propose o Imbalance weights against mandatory bargaining; harm likely done to er's need to operate freely outweighs incremental benefit might be gained through union's participation in decision making Decision to halt work at Greenpark not unlike opening new line of business or going out of business entirely Dissent "Terms and conditions" plainly cover termination of employment resulting form management decision to close operation Disagrees with balancing outcome because takes into account only interests of management, fails to consider legitimate employment issues of ees and union o One-sided approach, doesn't "foster in neutral manner" system for resolution of serious, twosided controversies United Food and Commercial Workers v. NLRB U.S. Court of Appeals 1993 Dubuque Packing Question What is the standard for determining whether a decision to relocate unit work is a mandatory subject of bargaining under 8d and 8a5 of NLRA? Holding Mandatory subject of bargaining Prima Facie case o NLRB establish er's decision involved relocation of unit work unaccompanied by basic change in nature of er's operation (prima facie case) o Er can rebut prima facie case by establishing Work performed at new location varies significantly from work performed at former plant Work performed at former plant to be discontinued entirely, not moved Er's decision involves change in scope and direction of enterprise Or er can show preponderance of evidence Labor costs not factor in decision Even if labor costs were factor, union couldn't have offered labor cost concessions that could have changed er's decision to relocate o Reasoning Supported by FNM "the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business" o Can bargain about relocations that leave firm occupying much of same entrepreneurial position as previously, taken b/c of labor cost, that offer realistic hope for negotiated settlement Supported by Fiberboard precedents: doesn't implicate er's core of entrepreneurial control, desire to reduce labor costs lies at base of er's decision, some prospect of resolving situation within collective bargaining framework NLRB v. Mackay Radio & Telegraph Co. Supreme Court 1938 Replace workers economic strike 8a3 violation: discrimination in rehiring Question Did er commit ULP in violation of 8a3 in it's rehiring of striking ees after an economic strike? Facts Ee's at Mackay members of local union, talked to er at San Francisco office, national union representatives talk to NY office National officers call for general strike in view of unsatisfactory state of negotiations (over terms and conditions of employment) Er brought ees form other locations to fill strikers places Striking ees want to go back to work, told they could return but er promised replacement workers they could stay if they wanted, so couldn't displace new men Er told strikers would have to re-apply Six strikers returned to work with other ees, got jobs back Five strikers submitted applications, told roll of ees complete, not rehired Not rehired ees filed ULP with NLRB for violation of 8a1 and 8a3 Holding Responded discriminated against 5 striking ees on account of union activities, excuse that quota fill was afterthought, not reason for discrimination Er not bound to displace men hired to take strikers' place to provide positions for striking workers 8a3 prima facie case o NLRB shows ees engaged in concerted activity (struck), ees suffered adverse employment action for engagement in concerted activity (not reinstated) o Er's burden to prove other legitimate, non-discriminatory reason of adverse employment action Reasoning Strikers remained ees under NLRA, protected against ULPs Not ULP to replace striking ees with others to carry on business (economic strike) Er not bound to discharge replacement workers for economic strike ULP about discrimination in reinstating striking ees by keeping some out for union activities o Several striking ees told union activities made undesirable, probably wouldn't be rehire o 6 striking ees got separate treatment, didn't have to have applications approved NLRB v. Insurance Agents' International Union, AFL-CIO Supreme Court 1960 Activities don't take place at bargaining table not lack of good faith Question Whether Board finds union engaged in bad faith bargaining because put on economic pressure by sponsoring on-the-job conduct designed to interfere with er's business, thus violating 8b3 of NLRA Facts History of er-union CB agreements Jan 1956 er and union negotiate new contract to replace agreement to expire in March April 1956 er files 8b3 ULP under NLRA based on actions of union outside conference room o Based on econ pressure of union: reporting late, leaving early as group, absenteeism Holding Union did not engage in 8b3 violation by putting economic pressure on er "It may be that tactics here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it" Reasoning Purpose of NLRA to get both sides to bargain, "what happens behind those doors is not inquired into" o To get both sides fo confer in good faith with desire to reach agreements o Give both sides wide latitude in negotiations Tension between principle that parties need not contract on any specific terms and that bound to deal with each other in attempt to resolve differences and reach common ground Economic weapons part of NLRA system, both sides have them; economic force prime motive power for agreements in free collective bargaining Things that don't happen at bargaining table not considered lack of good faith If board could regulate choice of economic weapons, would be able to influence terms of contract and results of negotiations Economic pressure activities might not be protected concerted activities, doesn't mean not in good faith o No inconsistency between application of economic pressure and good-faith bargaining American Ship Building Company v. NLRB Supreme Court 1965 Use of economic weapons Board's power limited: no authority to deny one party use of economic weapons because of assessment of bargaining power Question Whether er commits ULP under 8a1 and 8a3 of NLRA when temporarily lays off or "locks out" ees during labor dispute to bring economic pressure in support of bargaining position Facts Er engaged in CB with unions, contracted with them, resulted in strikes May 1, 1961 union wants to modify current contract expiring August 1 August 9, impasse Er nervous about strikes based on past experience despite union assurance of intention to reach agreement without strike August 11 er lays-off certain ees, shit down certain yards Negotiations resumed shortly after, contract agreed upon October 27 NLRB charges er with 8a1, 8a3, 8a5 violations o Board rejected that er could anticipate strike o Board found er violated 8a1 by coercing ees in exercise of bargaining rights, violated 8a3 by discriminating against ees Holding No violation of 8a1 No violation of 8a3 Er violates neither 8a1 or 8a3 when, after bargaining impasse, he temporarily shuts down plant and lays of ees for sole purpose of bringing economic pressure to bear in support of legitimate bargaining position Reasoning Precedent: no lockouts during CBA Quaker Exempted lockout classes: safeguard against loss where reasonable ground for believing strike threatened or imminent 8a1 violation must establish interference with ee's section 7 rights to bargain collectively and right to strike o With lockout er intended to resist demands made of it in negotiations and to secure modification of demands, didn't destroy or frustrate CB o Lockout didn't violate right to strike; right to strike only "right to cease work--nothing more;" doesn't include right exclusively to determine timing and duration of all work stoppages 8a3 violation must have both discrimination and resulting discouragement of union membership (turns on er's motivation) o Use of lockout doesn't carry implication that er acted to discourage union membership; purpose and effect were only to bring pressure upon union to modify demands o No claim er locked-out only union members or locked out ees because union members o Er didn't condition rehiring upon resignation from union To find 8a3 violation, Board must find er acted for proscribed purpose o Where er intention proven to bring about settlement of labor dispute, not violation shown Board construes functions too expansively when claims general authority to define national labor policy by balancing competing interests of labor and management 8a1 and 8a3 don't give Board general authority to assess relative economic power of adversaries and to deny weapons to one party or the other b/c of assessment of bargaining power No 8a5 violation because Insurance Agents holding (not refusal to bargain) o Hoffman Plastic Compounds v. NLRB U.S. Supreme Court 2002 Question Given er's NLRA 8a3 violation, is NLRB's award of backpay to an undocumented alien who violated IRCA foreclosed by IRCA? Facts Unauthorized worker Ee violated IRCA (got work by using forged documents) No er violation of IRCA NLRB remedy: "backpay for work not performed" Holding Board had no discretion to remedy violations by awarding reinstatement with backpay to ees who themselves had committed serious criminal acts Reasoning NLRB's discretion to fashion remedies broad but not unlimited NLRB interprets NLRA, not IRCA IRCA threatened if NLRB does this Backpay: "for years of work not performed" Other NLRB remedies sufficient Dissent What is primary disagreement o IRCA intended to reduce illegal immigration Decision creates more incentive to turn blind eye towards illegal workers Would lead to more NLRA violations, hurt NLRA enforcement ...
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