Labor Flashcards

Question

EEs cannot waive exclusive rep

Answer 1

JI Case - 75% of EEs under K before U elected as exclusive rep ER refuses to bargain w/U re those 75% EEs (arguing freedom of K) COURT - that’s 8a5 refusal to bargain; - all EEs in barg unit are entitled to exclusive bargaining agent - rejects ER waiver argument, that EEs waived barg right under K - it's not a waivable right; the whole idea of bargaining is inequality of individual bargaining power, so EE must be allowed by majority vote to bargain collectively, so doesnt make sense to let individual EEs to waive that right

Answer 2

EEs bypassing exclusive rep are not protected - Emporium e.g. EEs bypass U and incite boycott; ER fires EEs COURT EEs bypassed U and attempted to bargain w/ER on own U is exclusive rep and only way to bargain/address grievances ER not relieved from ban on direct dealing even if EE initiates

Answer 3

1. EU Work Councils - ERs and EE work council rep working together to discuss problems - what's a US management fear of 'work counsels? --> costs would go up EE reps would incite EEs to demand higher wages, etc foot in door, next thing will be collective bargaining and what would be terrible 2. Volkswagen - not full work council, can only discuss limited issues - 15% of EE want a certain rep to speak for them in a work council, ER will voluntarily recognize that cuz its good biz practice 3. Collaborative Bargaining - TN - allow 15% of teachers vote to barg. collectively 4. Multiple reps? - MO - constitutional right to bargain

Answer 4

Sec. 9(b) - “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining” - community of interests - Little guidance of “appropriate” except to maximize EE freedom - thumb on scale in favor of U’s - avoid fragmentation - prefer wall to wall (though now w/"micro units" may be changing) - 9(c)(5) = extent to which EEs have organized shall not be controlling on Boards determination whether unit is "appropriate"

Answer 5

- Guards,[conflict b/t guards who may be req to enforce ER rules against non-guards] - Professionals, [predominantly intellectual, uses discretion/judgment; ouptu cannot be standardized] - Supervisors (and other excluded employees)

Answer 6

- ERs voluntarily belong to association, which has reps at bargaining table - e.g. 100 companies have 5 reps who sit at bargaining table - defensive tactic for ERs - dont want Us to pick off one ER at a time, then move to next - desire to take labor costs out of competition, and compete in quality of product, so ERs dont have incentive to squeeze down wages/quality of worker life in order to compete - Hard to get out - Bonano - ER may withdraw prior to start of negotiatiion w/adequate notice; or by mutual consent, or unusual circumstances - --> unusual circs - extreme financial pressure or substantially fragmented barg unit - ----> NOT impasse, which is not unusual and only temporary deadlock

Answer 7

Micro Units OK - Specialty Healthcare 9(a) puts initiative of selecting unit to EEs not Board not “the” most appropriate unit community of interests in small workgroup --> Burden on ER to show "overwhelming evidence that bigger unit is appropriate"

Answer 8

- get cards signed (in no pressure manner) - go to neutral third party to evaluate cards (so U isn't outing the EEs to the ER) to see if majority LIMITS: 1) nobody can pressure/coerce into signing; 2) ER cannot assist U

Answer 9

(‘70s) allows ER to demand election - which U must get - ER subject to ULP for barg w/noncertified U - would req court to engage in good faith inquiry - dissent - nothing specifies how rep must be chosen; 9a says EEs barg rep is the U “designated or selected” by majority

Answer 10

Must have majority in fact, otherwise its an ER ULP (8a2) for assisting U recognition w/o majority support - Good faith not a defense - relief - cease and desist from the illegal recognition of U - practically speaking here, ER/U would then just turn around to EEs and say 'you've seen the CBA, if you like it then sign these cards' and get a majority card check

Answer 11

- higher success rates in bargaining - higher success rates of recognition - to escape ER anti-union tactics and delay in an election, which have shown to be effective at defeating recognition efforts - --strong cultural opposition to Us in America (American exceptionalism, dislike collectivism, free market w/indiv bargaining) - --in reality, ER discriminates against 4%-8% of U supporters - --captive audience issue - --ERs get rank and file supervisors to meet w/indivd EEs to persuade/obliquely threaten

Answer 12

- not a secret ballot and the U is coercive (sign this card, or do you wanna be a scab? - not informed choice or equal information - U isn't telling EEs about why Us are bad - for those reasons, tis not a reliable way to tell if EEs are exercising free choice

Answer 13

- [current] - to maintain stability, gives U/ER rsbl time to bargain in good faith w/o decert petition; rsbl = 6 months to 1 year, based on facts of each case and balance stability w/free choice (Lamont Gasket Obama Bd, overruling Dana) - Old rule - after card check recognition, 45 period for EEs (30%) to file decert petition; if none filed, then begin barg (Dana Bush Bd) - - Us objected to this rule; its hard to get first contract, and peeps want aciton immediately, and this 45 delay hinders those things; - - irony is that minority of 30% can force an election and delay the process, overriding the 70% who wants U and immediate bargaining

Answer 14

- same system of card check majorities - became common for public ERs to just accept validity of card check (like early NLRA private) - some states have system like Linden Lumber - other states, like NY, req ER to recognize majority card check - other states, like OR, CA, ILL, NJ - have laws like EFCA which is the State Board (ERB here in Oregon) is required to certify U that shows majority card check (that is verified) - ER cannot force election like under Linden Lumber - even if statute says verify by “dues deduction and other evidence”, and means or, because Legislature intended to get away from cumbersome process of election, so simple card check is sufficient to show majority

Answer 15

Three types: 1) ER remain neutral 2) ER give U access to EEs - phone numbers, physical property of workplace; 3) card check acceptance and direct to good faith bargaining (avoiding delay, expense, of electrion process) Why would ER agree? 1. avoid costs of not doing it (strike, picketing of customers, indirect costs of strained relations w/third parties (e.g. loss of biz w/religious groups); cost of disputed election); 2. benefits advantages of marketing services to unionized firms or to other unions; assistance from U in lobbying efforts; enhance ability to attract qualified EEs; promote cooperative stance w/EEs and U 3. Spike Lee Factor do the right thing

Answer 16

Election is "preferred" method - Gissel 1. 30% petition 2. Bd decides whether there is a question concerning representation 3. Excelsior List 4. Hearing 5. Election

Answer 17

- does Board have jurisdiction - whether adequate showing of interest (the 30%) - which is admin determination not subject to judical review - is there a qualified rep? which could be an individual (per 2(a)) or more typically labor org/union; if indiv/labor U doesn't wanna rep then not qualified - is the unit appropriate? - is there a bar to an election?

Answer 18

- recognition bar (why min in recognition bar? cuz need time to allow rep to show effectiveness; max cuz EE free choice is important) to get to a K - Sec. 9(c)(3) 1 year election bar if ER wins election (EE free choice take back seat to stability) - if U wins, then "certification bar" - 1 year bar from date of recognition (see Brooks case on 441) - Contract Bar -

Answer 19

1. stability - whats the point of a K if can just force election immediately; would make it harder for U to make sacrifices necessary to get agreement if rival U could swoop in and say i could get you a better deal 2. K must have substantial terms and conditions of employment to show stable bargaining relationship 3. 3 yr contract bar for non-party petitions/life of K for parties 4. except: "window period" 90-60 days before contract expires, may file petiton for election 5. stability vs freedom 6. Exceptions - rare - 1. schism (U divides); 2. defunct U

Answer 20

- ER must give U names & addresses of EEs in barg unit, w/in 2 days of election being ordered (was 7 days, Obama changed it to 2) - must include email and phone numbers (Obama) - -- PRO - Just how peeps communicate - -- CON - cumbersome for ERs

Answer 21

a. compromise - speed up process (good for Us) but keep election as safeguard (rather than EFCA/card check, good for ERs) b. must have pre-election hearing 8 days after petition is filed c. after hearing, election may be few days later d. moves disputes about voter eligibility til after election (e.g. is Drummonds a worker or a supervisor who can't vote?) - dont wanna hold up the election e. PROS (Unions) i. makes elections fair/levels playing field 1. ERs have inherent advantage w/time w/EEs and control over their salary, benefits, etc. 2. prevents ER from brainwashing, coercing ii. makes sense - have majority support already, why delay? f. CONS (ERs) . not informed choice - eliminates time for ER to give its info [Liebman spiel] 1. RETORT - ERs have plenty of time, they are prepared for this and will have materials/arguments ready to go w/in that 20 day period i. U can lobby EEs for months, pick time to drop petition for election then 8 days later are in a hearing and right to election 14 days later; NOT enough time for ER to give their side of story ii. ERs will be forced to continually tell EEs about why U's suck, and U's dont want that

Answer 22

- b/c legal rules dont protect EEs well enough? - b/c U's own problems? (bureucratic, lost conneciton to workers, etc) - b/c of American culture of exceptionalism? - ER coercion! - --U starts w/over 60% support yet still loses ½ elections . .

Answer 23

delays election until remedy - e.g. ER fires top 5 U-supporters before election, such that U supporters will change their mind - U files Type I Blocking charge that ER fired for union activity and must remedy before eleciton cuz its tainted now

Answer 24

prevents election from being held e.g. ER alleges U mischief that makes its election petition invalid

Answer 25

raises a causal connection b/t alleged violations and subsequent EE disaffection w/incumbent union [e.g. where ER unilaterally changes wages of non-U EEs to erode support for U] REMEDY = affirmative bargaining order - e.g. "tainted decert case"; Board determines whether ther eis causal conneciton b/t these ULPs and subseqnet EE disaffection with following factors: - -length of time b/t ULP and withdrawal of recognition - -nature of illegal acts, including possibility of their detrimental or lasting effect on EEs - -any possible tendency to cause EE disaffection from U; and - -the effect of unlawful conduct on EE morale, organizational activities, and membership in U

Answer 26

Not a successor alter ego = mere technical change in structure or identity of employing entity w/o any substantial change in ownership or management - must accept CBA

Answer 27

single ER doctrine applies to determine whether one entity is liablef or ULPs of another entity b/c they are really a single or joint ER; factors: 1. interrelation of operations; 2. common management 3. centralized control of labor relations 4. common ownership

Answer 28

1. status of unexpired CBA a. Buyer not bound (unless agrees to be bound in buying K) i. NLRA purpose to encourage private bargaining ii. if U/ER have K for successor, ER must violate that b. Buyer has duty of good faith bargaining c. Stock acquisition = not successorship, just diff stockholders so status quo remains 1. Duty to bargain if ER employs majority of old EEs - depends on majority status on key date: Representative Complement Test [ie a full shift to do the work] a. duty to bargain if majority when: i. job classifications designated for operation were substantially filled ii. operation was in substantially normal production iii. size of complement on that date of normal production iv. the time expected to elapse before substantially larger complement could be at work v. relative certainty of ER's expected expansion - --- EEs interest in being represented asap outweighs ER interest in maximum EE participation in complement b. [recall ER cannot discriminate in hiring based on U membership] c. BUT - ER can set initial terms and conditions of employment while bargaining 3. Continuing demand rule . ER's duty to bargain at the "substantial and representativce complement date" is triggered only when the U has made a bargaining demand; . --> if U demands before ER attains substantial and representative complement, then that demands stands until that time i. if U does not demand, U waives ERs duty to bargain 4. Successor bar . Obama Bd - requires ERs to recognize incumbent Us w/o challenge to their majority status after biz transition for reasonable time, not less than 6 months but not more than 1 year 5. If pending ULP, buyer is liable if a successor - risk (so lower price, indemnify)

Answer 29

Substantial continuity test 1 whether biz of both is essnentially same 2 whether EEs are diong same jobs in same working conditions under same supervisors 3 whether new entity has same production process, produces same products, an basically has same customers 4 whether retained EEs reasonably view job situation as essentially unaltered -- this furthers' Act's policy of industrial peace

Answer 30

When U actually lost majority support (ER must be right, or else violate 8(a)(2) coercion/discouraging U membership ) --- Remedy - ER must bargain in good faith if ER uncertain, may petition for RM election (9(c)), founded on objective evidence (unverified EE statements, EE dissatisfaction w/coll barg decisions, anti-U petition signed) - NOT barg unit turnover (presumption of majority)

Answer 31

• Balance b/t Sec 7 rights and ER property • presumptively, balance favors EE rights to do these things on non-work areas and non-work time • workplace is "uniquely appropriate" for U organizing that is central to Sec. 7 rights; (Republic Aviation) ------ unless special circs re production or discipline [safety, prevent alienation of customers, promote patient care] • Peyton Packing presumption - work time is for work * Examples: * EEs can talk Union activity during non-work time [work "time" not "hours" cuz "hours" might make EE think that includes lunch, but it doesn't] [Email ok - Purple Comms] * EEs hand out materials re U activity if away from work areas * EEs wear U buttons or insignia (unless safety threat, alienation to customers) * Exceptoins * presumptively, balance favors EE rights to do these things on non-work areas and non-work time * patient care providers - cant talk U in patient care area * ambiguous aresa in hospitals - flower shop/starbucks - if generally open to public then more restrictive rule does not apply * Presumptively valid Policy * Policy applies only during work time (ie does not apply during lunch and break periods, before or after work shift)

Answer 32

* facially neutral rule prohibiting solicitation during work time is presumptively valid absent discriminatory motive * OTOH - ER may not prohibit solicitation during non-work time unless special circs re production or discipline [safety, prevent alienation of customers, promote patient care]

Answer 33

Policy applies only during work time (ie does not apply during lunch and break periods, before or after work shift)

Answer 34

background - In some circs, EEs right of self-organization depends on learning from non-EEs (Babcock) RULE - so long as non-EE U organizers have rsbl access to EEs outside an ER's property, the requisite accommodation has taken place; it is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the EEs and ERs rights "reasonable" is nothing more than commonsense recognition that Us need not engage in extraordinary feats to communicate w/inaccessible EEs, NOT an endorsement of view that Act protects 'reasonable' trespasses (Lechmere - Thomas) E.g. Reasonable access (NOT righ to success) - grassy knoll reading license plates at 30MPH (Lechmere) Dissent - Sec. 2(3) of NLRA - includes "any EE and shall not be limited to the EEs of a particular ER"

Answer 35

captive audience meeting is mandatory meeting ER calls during work day, even during working time, in which ER discusses its views on unionization - Balance b/t Sec. 7 and ER property - ER wins re meetings - Can be individual meetings, small groups, or large - NO equal time requirements - Limit - No captive audience meetings w/in 24 hours of vote (Peerless Plywood)

Answer 36

- anti-captive audience law = "gag" law (as per ER) - OR has one - Big Question on anti-captive audience laws - broad preemption that labor laws carry; D's winning argument that state captive laws that limit NLRA allows (el.g captive audience meeting) is preempted by NLRA; in adopting NLRA Congress struck delicate balance and states are upsetting that balance; - opinions differ - advise strict compliance with ORegon's anti-captive audience, others say ignore it (Labor Comissh ignores); - MI Dist. Ct. threw it out - OR law - cannot punish for failure to attend; general reference to 'religious, political views' - and defines 'political' to include "U"

Answer 37

8(c) - expression of views or opinions shall not constitute ULP or even be evidence of ULP =---- BUT No threats or promises

Answer 38

free speech (8c) vs. “threat of reprisal or promise of benefit [in violation of 8a1]” 1) objective basis for prediction; 2) must communicate idea that consequences are beyond ER control OR to convey that ER decision was already arrived at Eg. threat v. prediction - We’re going to close - OK if actually close - “U could lead to closing” = NOT ok - ER puts up mock graveyard of unionized ERs = NOT ok - mock pink slips = OK - “prediction of probable economic consequences” based on experiences of similarly situated stores - “We’ll start from scratch on bargaining” = ?? ASK DRUMMONDS

Answer 39

FIST IN THE VELVET GLOVE RULE - Bd will infer that bens conferred/announced during critical period (b/t filing petition and date of election) is coercive, but ER may rebut by establishing an explanation other than the pending election for the timing; POLICY--- the evil to protect against is message that source of benefit (ER) can also take it away - - EEs not likely to miss that inference FACTORS - Bd Examines: - size of benefit; - # EEs recieivng it, - timing of benefit, - how EEs rsly would view the purpose of ben - Exception - for benefits that have been past practice; idea here is to prevent something new on eve of election - ---no exception for “permanent” benefit b/c “permanence’ is never sure E.g. ER gives EE choice of floating holiday, right before election = promise that violates 8a1 Ex of ok benefits: 1. drinks/dinner; 2. slightly larger xmas bonus if a. xmas bonus given every year and b. larger bonuses b/c of good ER finances; 3. new retirement plan if a) ER studying the plan for "some time" before election; b) EE committees interested in plan proir to election; c) date of announcement decided before election petition filed; d) retirement plan applied to all EEs not just the unionized ones Improper Union benefits - waiving U initiation fees if EE signs representation card - U gives EE legal representation in employment law suit (e.g. FLSA case): Rule - OK if litigation commenced prior to filing of election petition

Answer 40

RULE - Lies are OK (Midland) - regulate manner of deception not substance Only exception is forged documents, such that people cannot tell - Idea is EEs don't need paternalistic agency, they are adults and take everything with grain of salt and can decide for themselves - Old rule was too hard to administer - stubjective issues of “truth” and time for “effective reply” ``` OLD RULE (Ceramics) - redo election if other side did not have time to effectively respond to a lie -- idea was preferred way to counter lies is the truth - e.g. time to respond ```

Answer 41

e.g. pamphlets “ER sucks, treats this town like shit” 2 prong test: disloyal if: 1. EE comms to third do not indicate the comm is related to ongoing dispute; 2. Comm is so disloyal, reckless, or maliciously untrue to lose Act's protection Critique - central purpose of 7 is grant right to engage in concerted activity for mutual ad and protection even when the exercise of that right might otherwise be considered disloyal - e.g. right to strike, ask consumers to boycott, critique ER product as long as directly tied to labor dispute and not made w/actual malice

Answer 42

RULE - minor or isolated is ok but only if termperate in tone, german, and factually correct remedy - set aside election - policy - Voters have opp to exercise a reasoned, untrammeled choice Eg. NOT ok - ER links Us to blacks and “race mixing” Eg. OK - appeal to racial pride

Answer 43

ER unlawfully discriminates against EE where it takes adverse employment action b/c of EEs U activity - 8(a)(3) 1 in 20 who vote for U suffer discrimination 3 relevant statutory provisions: 1. 8(a)(1) - does not require intent, 'coerce in exercise of Sec. 7 rights" = ULP 2. 8(a)(3) - intent req - cant discrim b/c of of U membership [thus, ER shouldnt enforce U sec clause cuz that's forcing to pay into U - - but there is an exception] 3. 10(c) - remedial section - dont have to reinstate if "just cause" to dismiss them cost/ben analysis of ER - if fire them, worst is must pay backpay minus any EE mitigation (other job earnings), no compensatory or punitiive; and this helps kill the Union

Answer 44

A. P - pf case (1) protected activity; (2) ER knew of the activity; (3) U animus B. burden shift to ER to (1) rebut pf case; (2) show by preponderance of evidence it would have taken same action in absence of EE’s U activity C. If ER succeeds, then escapes liability [T7 just mitigate damages]

Answer 45

RULE - presumptively violation of 8a1, b/c it has tendancy to intimidate; Unless -- -- ER could articulate valid need - e.g. "every time U meets, ER's property is destroyed and we wanna know who's doing it"

Answer 46

Timsco test - history of hostility toward U - nature of information sought - ID of questioner - e.g. high up? high up = more coercive - place and method of interrogation - truthfulness of the reply - shows EE was afraid of telling the truth

Answer 47

[doesn’t really happen today cuz ER just exercises Linden right to election] RULE: presumptive violation of 8a1 unless - purpose of poll is to determine the truth of U’s majority claim - this purpose is communicated to the EEs - assurances against reprisal are given - “there will be no reprisal” - EEs are polled by secret ballace - ER has not engaged in ULP or otherwise created a coercive atmosphere polling is related to the ER/EE relationshp so can be valid OTOH polling serve no purpose that’s not better served by the election itself

Answer 48

a. 8a3 - EE cannot be terminated b/c of union activity/membership b. intent - “b/c” may be shown w/smoking gun or circumstantial evidence i. timing ii. treat similarly situated EEs differently [e.g. all drivers leave keys in the car but ER only fired the U supporter] iii. knowledge of EE activities - if small biz can presume ER knows iv. ERs expressed hostility to U activities v. ER's failure to fully investigate purported reason for adverse action vi. ER's disparate treatment of EEs on basis of U activity vii. ER's reliance on pre-textual reasons to justify the adverse action c. intent not req where ER act is inherently destructive of Sec. 7 rights . where sole criterion for bonus pay was U membership --> even if no intent to discriminate, the natural result of such bonus is discrimating on basis of U membership i. e.g. - Note 2 p373 - Super Seniority for strike breakers as reward for breaking strike - no direct proof of intent to dsicourage U membership, but super seniority carried own 'indicia' of intent ii. - e.g. - refual to give strikers vacation beneftis = natural consequence of discouraging U membership d. WHAT ELSE IS REQUIRED?

Answer 49

ER can go out of biz for anti-U reasons but must actually do so (relocation insufficient) Distinguish Gissel case “threats v. predictions” analysis. 1) objective basis for linking consequences; 2) communicate to EEs in way that suggests its inevitable and that ER has no discretion

Answer 50

mostly same, but bound by FOIA rules, and public interest is part of balance e.g. FOIA protects providing home addresses for privacy and public interest does not outweigh that

Answer 51

Most public sector jurisdictions adopt the Wright Line "but for" test some adopt “in part” test - Presume state legislature knows of Wright Line test, so if dont adopt it maybe it meant something diff - in part accounts for true motive of ER, cuz always will have he said/she said - but for test allows ER to lay out lots of legit reasons and distracts focus away from ERs true motivation

Answer 52

1. 8(a)(5) - ULP for failure to bargain collectively w/exclusive rep 2. 8(b)(3) - ULP for U to fail to bargain w/ER 3. Section 8(d) - obligation to: a. meet at rsbl times (dont be a jerk) b. confer in good faith c. w/respect to wages, hours, and other terms and conditions of employment d. execution of written K incorporating any agreement e. such obligation does not compel either party to agree or make concession "Provided" - where existing CBA, cannot modify unless - 60 day notice - notice to Federal Mediation and Conclialiation Service and state agency

Answer 53

TESTS of “good faith” - not helpful - - 'open and fair mind at barg table'; - 'present intention to find basis for agreement"; - "not pretending, sincere intention and making effort to come to agreement" Fact intensive, case by case inquiry - draw inferences from evidence pointing in diff directions, and depends on NLRB composition/court/regional office --- basically like fighting over 'rsbl' Substance can show bad faith/no intent to come to agreement - - ER says no duty to agree so don’t look at substance - ---BUT that duty does not allow ER to demand extreme positions, so substance can show evidence of closed-mindedness e.g. Surface Bargaining King Sandwich - U alleges surface bargaining, based on: -regressive bargaining (retreating my position on an issue - e.g. offer $20 then later drop to $10) -ER control of everything (wages - ER makes final decision and no grievance) -Management Rights Clause (19 things, qualifications of EEs, OT, etc) -Zipper Clause (zips up duty to bargain - eg. parties waive right to bargain during life of agreement re anything, to get around NLRA continuing duty to bargain) ER won't agree to Non-Discrim Clause (that ER is required to do so anyway) ---> surface bargaining - "ER would have left U w/less protection than if they didnt bargain at all"

Answer 54

1. dilatory tactics - whether ER used tactics that unrsbly impeded negotiation 2. substance of proposal - whether ER proposal unduly harsh or unrsbl 3. behavior of spokesperson - extremely discourteous? 4. consessions - did ER make rsbl effort to settle differences? 5. failure to explain bargianing position 6. course of negs - whether ER rushed through neg process showing lack of intent to agree • e.g. salary wage freeze imposed by legislature = hard bargaining [esp in context of recession] - - but maybe different in boom times if leg. just handcuffs negotiator

Answer 55

- cease and desist order, back to bargaining table and bargain in gf! - weakness of NLRA, no real punishment for ER (and it might take years to get it)

Answer 56

Rule - ‘discovery-like’ standard of relevance to effectively negotiate Balancing test: 1. Relevant to effective negotiation? a. presumably relevant - wages, hours, TCs; b. other = P burden 2. ER countervailing interest? . ER has burden to propose accommodation to disclose the relevant info w/safeguards 3. NOTE - "inability" vs. "competitve disadvantage" - i.e. if ER says "cannot pay" then must prove it, vs "dont wanna pay for valid reasons" then ER must not prove it . balancing of Relevance vs. Countervailing Interest

Answer 57

mostly same, but bound by FOIA rules, and public interest is part of balance e.g. FOIA protects providing home addresses for privacy and public interest does not outweigh that

Answer 58

1. duty to provide information 2. unilateral change doctrine 3. bypass theory - where ER bypasses rep and goes straight to U EEs 4. refusal to execute formal K(that mirrors agreement) after agreement at barg table (per se) (8a5 failure to barg violation) REMEDY for violation of per se: return to status quo ante

Answer 59

RULE - No unilateral changes on mandatory subjects of bargaining during negs; obstructs bargaining and violates 8a5 [cannot uni change before negs begin cuz that would be actual failure to bargain] RULE - ER may implement last best offer after impasse (Katz) - -- exception - when ER retains complete control over wages (McClatchy) - - e.g. merit pay where ER keeps all discretion re merit - - easy to avoid cuz just give up some discretion/control - Controversial - ERs arguments - Sec. 8(d) - no duty to agree or make any consessions! that incloudes control over wages; nothing in NLRA distinguishes wages from hours or other working conditions, so why exception for just wages? It makes no sense!

Answer 60

1. uni changes destabilize ER-EE affairs; it can spark strikes, ER has advantage, forcing EEs to talk ER back to prior terms 2. protect exclusive barg rep - uni actions derogate rep's negotiating power as effective rep in eyes of U members 3. protects the system - uni actions break the rules of neg w/exclusive rep, give U right to bargain prior to final action, sometimes public notice req before decisions, and there is mediation/arbitration procedure if impasse 4. in context of declining revenue, uni act may unfairly shift community/political pressure to EEs - unique to public sector

Answer 61

1. 8(a)(5) - ULP for failure to bargain collectively w/exclusive rep 2. 8(b)(3) - ULP for U to fail to bargain w/ER 3. Section 8(d) - obligation to: a. meet at rsbl times b. confer in good faith c. w/respect to wages, hours, and other terms and conditions of employment d. execution of written K incorporating any agreement e. such obligation does not compel either party to agree or make concession "Provided" - where existing CBA, cannot modify unless - 60 day notice - notice to Federal Mediation and Conclialiation Service and state agency NOTE - duty to bargain starts on day U is recognized as exclusive rep (so no unilateral change even before negotiation starts)

Answer 62

= more bargaining would be futile; factors: a. bargaining history b. good faith of parties in negs c. length of negs d. importance of the issues over which there is disagreement, and e. the contemporaneous understanding of the parties as to the state of negotiations PUBLIC - not at impasse until finish statutory process/continuation of bargaining - interest arbitration/factfinding

Answer 63

8(d) - duty to bargain “continues in full force and effect” all terms of existing K good policy cuz: 1. parties are encouraged to arrive at joint decisions re bargainable matters 2. Act's policy of "encouraging the practice and procedure of collective bargaining" is furthered 3. simplifies, speeds up bargaining process by eliminating pressure on parties to cover every single topic that might ever come up 4. ensures Us and ERs that if future conditions require agreement/discussion, then discussion will occur

Answer 64

8(d) pertains to things “in the K” so the duty to continue bargaining = anything that is in the K or was waived

Answer 65

RULE of waiver = clear and unmistakable - fully discussed by parties and consciously yielded its interest in the matter 5 theories of waiver 1. Negotiations history - e.g. "we give up on this issue" after many hours of discussing it 2. Inaction - if party is on notice of proposed change in wages/hours/working cond (and does not file duty to barg) and is silent then U WAIVES by inaction 3. Zipper Clause - "each party for term of K agrees to waive any duty to bargain about any topic, whether included in K or not, whether contemplated by parties or not" 4. Maintenance of Standards Clause - anti-zipper clause - "U and ER agree that over life of K ER will make no changes in established practices re mandatory subjects whether included in the K or not" 5. Management Rights Clause - that says ER reserves certain powers to itself (e.g. discipline, other powers of management it reserves for itself) - --must be specific - “ER reserves all other functions” is not waiver of cont duty to barg - --"mgmt retains complete auth over all matters re discipline" = specific and waiver of cont duty to bargain over discipline - -- hypo - later, ER fires EE and U wants to baragin about it; duty to bargain per cont duty? discharge is mandatory subject, but it was waived w/”management rights” clause

Answer 66

if party is on notice of proposed change in wages/hours/working cond (and does not file duty to barg) and is silent then U WAIVES by inaction

Answer 67

anti-zipper clause - "U and ER agree that over life of K ER will make no changes in established practices re mandatory subjects whether included in the K or not"

Answer 68

says ER reserves certain powers to itself (e.g. discipline, other powers of management it reserves for itself) ---must be specific - “ER reserves all other functions” is not waiver of cont duty to barg ---"mgmt retains complete auth over all matters re discipline" = specific and waiver of cont duty to bargain over discipline --- hypo - later, ER fires EE and U wants to baragin about it; duty to bargain per cont duty? discharge is mandatory subject, but it was waived w/”management rights” clause

Answer 69

1 NLRA w/general language - “w/h/tcs of empl” but usually exclusion for “management rights” as not mandatory 2 like OR where legislature spells out mand topics in more detail

Answer 70

- tension b/t "wages, hours, terms and cond" and "management rights" cuz nearly all mgt rights have some effect on cond of emp - BALANCE right of ERs to run biz w/EE right to engage in coll barg 0. If subject has material influence on wages, H, TC and involves exercise of inherent mgt discretion, then balance: 1. extent to which subj is logically and reasonably related to w, h, tc; 2. extent to which ER obligation to neg significantly abrdiges freedom of mgt rights, including examining the type of ER involved and whether inherent discretion on the subject matter is necessary to acheieve ERs essential mission and obligations to public; and 3. extent to which mediatory influence of coll barg and when necc, impasse resolution are appropriate means of resolving conflicts over subj matter

Answer 71

Remedy for per se violation What is status quo? 1. Static status quo (minority; freeze everything) 2. Dynamic status quo (majority; maintain system in place and implement scheduled changes) Public - - Static may be good for public sector cuz 1) unfair to gov to maintain $ commitments when gov faces budget hole; 2) requiring the auto payments removes that issue from bargaining process and forces gov to table already burdened with that wage scheme even if it is no longer economically viable

Answer 72

8(d) - defines "barg coll" to mean to "confer in good faith w/respect to wages, hours, and other terms and cond of empl" Wages = anything pertaining to compensation broadly defined  salary, health insurance, pension, vacation pay, etc; does NOT include gratuities (non-seniorit, non-merit bonuses are gratuities);  bonuses that create "reasonable expectation" are wages (e.g. paid out regularly)  individual pay is not a mandatory subject (but salary level for all Ees is)  merit pay usually mandatory subject hours - in day, week, scheduling of hours, OT (mandatory, permissive where EEs want it) "other terms, cond" - wtf does that mean? Examples: · drug/alco testing · disclipline, discharge - grievance procedures · order of layoff, recall - not the decision, but the order · grievance arb process · union security · safety issuess · p675 nonexhaustive list

Answer 73

1) uni change doctrine only applies to mandatory topcis of bargaining; 2) it tells you what obligations are at bargaining table - mand = obliged to barg in gf; if not, then not 3) also defines that if discussed mand item, know what subjects can be insisted on all the way to final impasse

Answer 74

RULE - to determine whether in “core of entrepreneurial control” and thus not mandatory (Debuque) re relocation: 1) Initial burden on NLRB to establish that ER’s decision involved relocation of work w/o basic change in ER’s operation • this est pf case that decision is mandatory subject of barg • burden shift to ER 2) ER may rebut by • not the same work • work was not moved, the old work was just eliminated • change in scope and direction of the enterprise 3) ER can show affirmative defense • labor costs were not factor in the decision, or • even if labor costs were factor, U could not have offered concessions that could have changed the ER’s decision to relocate

Answer 75

theory of coll barg is about two forces trying to come to agreement; philosophy of NLRA that market forces should decide how these play out; econ pressure is part & parcel to coll barg - its what compels parties to make concessions and come to agreement - presence of econ weapons in reserve are part & parcel of NLRA, regardless of the tension b/t good faith barg and using econ weapons - Congress outlawed some specific econ weapons (see 8b4 and 8b7) but not all, meaning some are allowed

Answer 76

Mandatory - Is the topic a “term/condition of employment” such that NLRA mandates it as topic for collective barg? Usually broad - POLICY - to channel disputes through the negotiating process that leads to voluntary agreement w/o huge dispute/strikes [e.g. food at Ford] But not too broad - 8(d) are words of limitation (Stewart in Fibreboard) - limited to “wages, hours, tcs of empl” - Many ER decisions clearly imperil wages, hours, tcs, or even terminate a job - (e.g. moving to cost saving technology that eliminates need for labor) - Such managerial decisions at core of entrepreneurial control cannot be mandatory topic of barg Implications of topic being mandatory i. both parties subj to liability for failure to barg in good faith (8a5 violation) ii. parties may insist on their position during bargaining w/o committing ULP iii. parties may use "economic weapons" in support w/o ULP iv. parties must disclose information re the subject if request v. uni action absent an impasse or waiver is subj to liability vi. uni modifiy CBA on mandatory subject absent consent is sujb to liability Congress chose not to list exhaustive list of mandatory subjects in Taft-Hartley Act, showing it intended greatest possibile flexibility for the parties mandatory includes "only issues that settle aspect of ER/EE relationship" - retiree issues could be mandatory, but only to extnet they impact terms/condt of employment of "EEs"

Answer 77

Concurrence - Stewart - "decsions at core of entreprenuerial control are NOT mandatory topics of bargaining" Majority - held sub-K is mandatory subj of barg cuz 1. well within literal meaning "terms and conditions of employment" covers sub-K, cuz it clearly covers termination which necessarily results from sub-K 2. purpose of NLRA is channeling topics into barg process to have peaceful resolutions of disutes 3. industry practice - restrictions on sub-K was common in the industry 4. same work - ER just replaced U-EEs w/non-U EEs; same work, same ways, same working conditions 5. other ways to reduce labor costs - U could have agreed to concessions, so collective barg would not be pointless - caveats - if totally new technology (e.g. robtos) to do same work, then that might be diff; if ER might invest lots of capital, might change decision; if clear futility of bargaining the sub-K, -

Answer 78

Held - partial closing is NOT mandatory topic of bargaining TEST - only if benefit of coll bargaining outweighs burden on ER is there an obligation to bargain * Sec. 8d are word sof limitation * U is not equal participant as management (some management decisions have only attenuated effect on scope of barg) * three categories of mgmt decisions If direct impact on employment but focus is on profitability - management must be free of constraint of coll barg to run a profitable biz - then do balancing test . BUT NO, ER does not have full freedom to be profitable, that's the whole purpose of the NLRA, its possible U could have made concessions in bargaining to save jobs and ER can gain profitability; labor costs are major part of profitability, ER is not free to do what they will No Test needed: 1. attenuated affect (advertising, product type/design, financial arrangement (sell bonds to raise funds) - clearly not mandatory a. BUT is it true that product type/design has no/attenuated effect on EEs? ex - auto decision to produce shitty cars, that might have effect.... 2. direct effect - order of layoff, work load, work rules, etc. - predominate effect on working relationship - clearly mandatory

Answer 79

1. Parties can bargain over effects of a decision, b/c those effects can have impact on wages, hours, Tcs of empl 2. Effects bargaining - given a decision to relocate, what are the effects on the EEs 3. this must be completed before the decision is implemented 4. severance pay, transfer rights, COBRA, etc. - topics of effects bargaining 5. problem for U - leverage is super weak once decision made 6. worst thing ER oculd do is refuse to bargain over effects, cuz then U has a ULP and can get some kind of remedy for EEs, but if ER bargains and just refuses to agree, then U has nothing

Answer 80

E.g. level of production, plant closures, putting U rep on Bd. of Dir Why would ER agree to bargain permissive topics? i. good relation w/U, ii. head off difficult area later, iii. Trade chips - CBA for U is basket of goodies for the EEs so if ER can add to that basket w/permissive items but that aren't that bad for ER then its good PR for the ER and may be used as leverage for mandatory subjects iv. No duty to agree

Answer 81

even if agreed to, its not enforceable illegal provisions - e.g. U security clause in a Right To Work STate preference for US Citizens

Answer 82

ER says Yes: • ER decisions have legal and political considerations (e.g. pensions may be defined by statute, personnel matters covered by civil services rules, etc). * collective agreement is gov decision, like legislative act - inc wages = inc taxes to pay for them * link to budget and taxes (when give more econ value to EEs that effects taxes and budget), whereas private inc in salary only impacts ER profits * Ultimate ER is the voters * they pay taxes and receive the services * ER is answerable to the voters U says No: U says EEs are EEs, regardless of private/public - care about same issues, have similar jobs

Answer 83

- gives EEs more effective voice in decision making - U has mor edirect access in decision than taxpayers - U deals w/decision makers w/o other interests (like voters) being heard (closed-door process)

Answer 84

political system has built-in bias against public EEs, cuz their salaries come from taxes and voters outnumber EEs and are selfish and undervalue EEs so they would not vote for appropriate compensation (meaning, higher taxes) some topics important to ERs are not important to voters -

Answer 85

democracy says legislature - cuz this is policymaking/lawmaking --- but NO cuz subj of Employmnt coll barg is not politics, its about employment relationships Court - court interprets issues immediately before it/w/in parties, but legislature considers broader impact (like effect on public budget, taxpayers generally, etc.) --- in this way, court is more like scalpel looking at specific facts, whereas legislation is sledgehammer

Answer 86

E.g. school calendar - mand or not? yes - effects fundamentally impacts teachers' working conditions - will they work over holidays? what's their vacation? Total days per year on what salary? also all statutes that cover mand topics say "hours" (w/h/tcs) No, its a fundamental edu policy decision cuz calendar is about whats best for student's education Recall - decision vs. effects - teachers make effects argument - admit the calendar is a edu policy decision at core of entrepreuneurial control, but the effect of setting school calendar at X total days has great effect on teachers, so teachers say if you set it at X then you must hire more teachers, pay us more, etc., so may as well just set at Y days

Answer 87

1 NLRA w/general language - “w/h/tcs of empl” but usually exclusion for “management rights” as not mandatory 2 like OR where legislature spells out mand topics in more detail

Answer 88

- tension b/t "wages, hours, terms and cond" and "management rights" cuz nearly all mgt rights have some effect on cond of emp - BALANCE right of ERs to run biz w/EE right to engage in coll barg 0. If subject has material influence on wages, H, TC and involves exercise of inherent mgt discretion, then balance: 1. extent to which subj is logically and reasonably related to w, h, tc; 2. extent to which ER obligation to neg significantly abrdiges freedom of mgt rights, including examining the type of ER involved and whether inherent discretion on the subject matter is necessary to acheieve ERs essential mission and obligations to public; and 3. extent to which mediatory influence of coll barg and when necc, impasse resolution are appropriate means of resolving conflicts over subj matter

Answer 89

Local 195 [minority approach] - If the ER motive is $, then it’s not mandatory (this state is mand/not mand, no such thing as permissive)

Answer 90

NY Police - statute gives disciplinary discretion to polish commish, so U proposal re discipline cannot be mandatory subj of bargaining

Answer 91

- not mand = limits on when cops can use deadly force - minimum coverage w/certified EEs - --usually must link the EE demand to be "inextricably intertwined w/safety" to be a mand subj - cuz otherwise nearly all U positions, which all have some impact on w, h, tc, would be mand - ERs often win by showing a significant factor of their decision was to protect the public - Effects barg diff than decision itself? - 723/4??

Answer 92

- Not mand - year round school - based on educaitonal policy judgment about best way to learn (outweighs impact on EE vacations/hours) - start/end dates - split - mand cuz significantly related to teacher's working cond/# hours worked; not mand cuz only effects scheduling not total # days/hours - class size - split - mand cuz class size = teacher workload, which is h, tc; not mand cuz class size goes to the manner and means by which education service is rendered, which is mgt right - mand = teaching load - not the same as class size, b/c class size is policy jdgmt based on needs of students, which teaching load is total # of teching periods which is clearly mandatory - mand = transfers and reassignments (of teachers)

Answer 93

Split - some say mandatory and rely on Fibreboard - others not mandatory - sub-K is inherent gov right; not like Fibreboard cuz that was private sector and pub is diff Local 195 as example (minority) Test to determine if negotiable: 1. item intimately and directly affects work/welfare of public EEs 2. subj has not been preempted by statute/reg 3. a negotiated agreement would not significantly interfere w/determination of gov policy - balance interet of EE and ER - if dominant concern is gov mgt preogative to determine policy, the subj is not neg even if it intimately effects EEs working cond

Answer 94

- ER options - unilaterally implement last best offer - let status quo sit (if not concessionary barg) - lockout & use replacement workers - U options - strike - boycott - status quo - work to the clock (slowdown production; "blue flu" (cops call in sick all at once); moral is low so production suffers) - "unconventional strikes"

Answer 95

theory of coll barg is about two forces trying to come to agreement; philosophy of NLRA that market forces should decide how these play out; econ pressure is part & parcel to coll barg - its what compels parties to make concessions and come to agreement - presence of econ weapons in reserve are part & parcel of NLRA, regardless of the tension b/t good faith barg and using econ weapons - Congress outlawed some specific econ weapons (see 8b4 and 8b7) but not all, meaning some are allowed

Answer 96

Sec. 1 - strike = "form of industrial strife or unrest" that disrupts commerce - -> Sec. 7 protects concerted activities which includes strikes - ---> Sec 13 NLRA should not be interpreted "either to interfere with or impede right to strike" - Tension b/t NLRA condemning strikes as strife but protecting it - the reality is strikes are necessary part of coll barg even if not an academic ideal --- "econ weapons in reserve are part & parcel to NLRA" - policy of US to eliminate causes of subst. obstructions to free flow of commerce and to mitigate and elminate these obstructions by encouraging coll barg

Answer 97

protected by Sec. 7, concerted activity for mutual aid and protection; Sec. 13 (nothing in the Act shall "interfere with right to strike") Limits to conventional strikes • cannot strike over permissive items of bargaining • cannot engage in misconduct, violence, property destruction • may waive right w/ “no strike clause” in CBA ----> Generic clause will not waive right to strike over ER ULP, but specific language can waive it ----->If U strikes in violation of ‘no strike’ clause, Court may enjoin the U (this is exceptoin to Norris LaGuardia (“Anti-injunction act”) that prohibits courts’ enjoining labor disputes

Answer 98

Costs of strike - ERs - may stop operating, losing sales & biz relationships; supervisors/managers must do floor work; pay to train them and new hires - EEs - lost wages, emotional uncertainty w/o predictable income/outcome, risk of losing job to permanent replacement worker Bens of strike - EEs may get what they want - ERs - the EEs may fail and cave

Answer 99

- economists - strikes are result of imperfect information or strategic behavior 1. imperfect info - both sides think they'll gain more in concessions by strike - but both cannot be right - that is imperfect info - Us may strike to adjust unrealistic expectations of workers, thereby gaining info - ERs may gain info about EE resolve - strikes may be cheapest way to educate workers or ERs - But still bears a cost/risk on both - Better info would reduce strikes - public revenue/cost filings of ER - require info exchange as good faith bargaining - prohibit lying in negs - encourage mediation/factfinding - -> if promoting industrial peace is goal of NLRA/labor law then better info should be a goal 2. Strategic behavior - two options in negs: cooperate or intransigence - individual incentive is to be intransigent - but employing that, for both sides, leads to strike which leads to suboptimal outcome - best if both sides cooperate

Answer 100

General RULE - U's strike/calling for does not terminate ER duty to bargain in good faith; and U engaging in unprotected concerted activity does not obviate ER duty to bargain in good faith - two exceptions 1. if U strikes in violation of no-strike pledge; 2. when ER hires replacement workers they are not subject to duty to bargain with the striking/locked out U regarding the terms on which replacements are hired/employed

Answer 101

part of economic warfare, but neither protected nor prohibited: * Slowdowns, * Sit-ins, * Intermittent Strikes * on/off - EEs dont show up one day, work next day, off, on, etc. * rolling (U strikes at one plant, then another, then another)

Answer 102

RULE: [McKay Doctrine] ER may permanently replace striking workers as long as their motives are biz and not anti-U motives

Answer 103

• n/a to ULP strike [ULP strike = ER committed ULP, and the ULP is the predominant motive for the strike] - -- strike may start as econ strike, then turn to ULP strike if ER commits ULP - --- leads to dispute over whether the strike is ULP or econ strike (factual issue) - if ER thinks its an econ strike and replaces, but is wrong, then ER owes backpay and reinstatement • temporary replacements have no right to keep the job - ER must tell replacement worker they are permanent ------ if tell permanent they are permanent, ER faces tough sitch where must reinstate thereby breaching K to repl ??? * strike settlement agreements - U often won't agree to CBA w/o agreement to reinstate the strikers; so danger to ER is if it promised replacements of permanent status [ER would owe both] * EE has right to be on preferential hiring (indefinitely) but ER not required to displace the replacement worker * striking EE has right to vacant jobs for up to one year * cant discriminate against U in decision to recall workers

Answer 104

- ER can offer to pay perm repl more than U EEs only if ER can give econ motive for doing so - ER can unilaterally set initial terms of employment for repl workers; but after initial terms, then duty to bargain in good faith w/U is still exclusive barg rep of all workers in that workplace's barg unit

Answer 105

a. vital services cannot be interrupted - but that only really works for cops/fire; other vital services are often private, like transportation, and no rules banning private strikes b. Pub EEs competing against other public needs for fixed budget $ c. public officials motivated by election not bottom line; may be tempted to cave to unreasonable U demands and pay the price w/in overall gov budget - cut programs, increase taxes - to hide the role of the U on budget - but pub sector strikes are not popular, so this might not make sense d. threatens vital gov services (SSEC checks) e. public ERs handcuffed by legislature - Strike is all about econ pressure; w/public the econ pressure impacts state budget that supports welfare, roads, etc.

Answer 106

1 right, recognizing the concerns above 2 Pub EEs need another arrow in quiver to assert pressure/strengthen coll barg process 3 many public EEs/services no longer “inessential”

Answer 107

- not allowed to strike - public safety; mass transit; sympathy strikers - illegal - exhaustion process/proc reqs for those who can strike - impasse to mediation; or mutual agreement during barg to mediation; 150 days of gf barg req before unilaterl mediation request; 15 days of mediation; any party may declare impasse after 15 days; impasse, then 7 days to 'final offer' of each party, then mediator publicizes offers; - then, if not resolved, can do factfinding (optional); factfinder makes recommendations but nothing binding - then, 30 day cooling off peroid where status quo maintained - then, ER can implement last best offer, and EE may strike (as long as not prohibited like public safety) - Lawful strike reqs: - conclude gf mediation - 30 day cooling period - 10 day strike notice (like health care in private sector) - must tell date of strike so ER can make accomodations - ensure K is expired - unconventional strikes are illegal - ULP strikes are illegal (not just unprotected, but illegal) - even where strike is lawful, public ER can get injunction to stop strike cuz it endagers public; rare, cuz judge who enjoins will require interest arbitration (which ERs hate)

Answer 108

consistent w/Sec. 7, and duty of good faith to bargain b/c coll barg is about econ pressure on both sides

Answer 109

- to protect property (e.g. where have perishable goods and unsure when U will strike) - To avoid “whipsaw” U tactic - multiple ER situation - e.g. food ERs (freds, safeway, albertsons etc); U would do rolling strikes so some EEs could cont to make $ and support rest of strike; so multiple ERs locked out EEs once first EEs strike

Answer 110

where use econ pressure on EEs by taking away paycheck - OK, it drives the coll barg process in private sector - may be during bargaining, just econ pressure - Replacements during lockout - Temporary ok - Permanent - circuit split - Arg for no, that it would too easily become device for Union busting; [and where if EE strikes, EE does so by choice, so that ER can perm replace] -- in such reasoning, perm replacement could be inherently descructive of Sec. 7 rights

Answer 111

NO E.g. where some crossed picket line, then U gave up on strike, ER says it’s “locking out” the EEs who did not cross and will reinstate the crossers - --. ER says it’s not discriminating against non-crossers b/c of U activity (which is illegal), rather it’s locking them (which is legal) - ----> NO - that is inherently destructive of Sec. 7 rights; Fact that EEs could avoid partial lockout by agreeing to ER demands would validate all partial lockouts

Answer 112

alternative to striking Third party neutral determines the terms of the K (vs. grievance arb where the arb interprets/applies the language already existing K)

Answer 113

1 interest arb may be agreed to, but it is not mandated by NLRA 2 EFCA - would provide for interest arb for first K (but not successor Ks) ---- Why? tensions are high, relationship is precarious, so interest arb can help get the marriage off to a good start

Answer 114

arb may write compromise K even w/own language (not bound by parties proposals) Pro - most flexible and may result in most ideal agreement, allows arb to pick best proposals, reject bad, and insert ideal proposals the parties’ didn’t come up with Con - arbitrator may split the baby, encouraging extreme positions

Answer 115

Issue by issue = Arb must choose either side for each issue • Pro - allows arb to pick best positions • Cons • Arb will split the baby, encouraging extreme positions • encourages gamesmanship, parties will draft some reasonaonble proposals knowing they’ll be adopted but also extreme positions • The parties’ positions both might be less than ideal, but the Arb’s hands are tied to choose one Package = Arb must adopt one side’s final offer, whole shebang Pro • encourages reasonable packages, cuz arb will choose most reasonable package • encourages parties to agree before interest arb for fear of losing at arb Cons • handcuffs arb - both sides might be awful/not ideal, and arb cannot throw in own/appropriate language • sides might piggyback some extreme stuff with reasonable part of package • nobody likes this - its a lot of pressure on those drafting the proposals; you either win or lose (life or death); parties prefer splitting the baby to all or nothing

Answer 116

give leeway/discretion to arbitrator, gives parties’ outline of arguments to make * ONLY mandatory topics [if slip in permissive, then open up whole arb. decision to judicial review] * interest and welfare of the public (most weight) * rsbl financial ability of ER to pay [may take into account “hard times” aka recession] * want an expert (accountant, e.g.) to testify to this * ability to attract and retain qualified EEs * pro-U factor, cuz to get qualified EEs need better wages, working conditions * pro-ER, we dont need to pay any more than already are cuz unemployment is high so we get 500 resumes for each vacancy; and already having no trouble retaining EEs * overall compensation - total economic package - wages, benefits (to Ee and cost to ER), sick leave * external comparables - what are comparable cities paying these EEs? * what is "comparable"? CA? WA? ID? * internal comparables - * CPI - consumer price index - statute may specify particular index (wha'ts the incrase since last raise?) * party stipulations * "such other factors as are traditionally taken into account to determine wages, hours, tcs of employment" * only if arb determines he cannot make decision based on other factors * interst arb awards are final and binding, IF the wawrd is supported by "competent and substantial evidence based on the whole record" and the statutory criteria * limited judicial review * Parties can stipulate to own criteria that are “substantially equivalent” to statutory criteria

Answer 117

TEST - Core of entrepreneurial control (combining Dubuque, Fibreboard, and First National) Essentially a balance b/t ER right to manage biz and obligation to bargain in good faith re terms/conditions of employment, which can be broad and implicate many ER decisions 1. Initial burden on Board/EE to show ER’s decision involved something well within “term/condition of employment” (like relocation (Debuque), sub-K (Fibreboard), but not partial close (First Nat) 2. Burden shift to ER to rebut a. E.g. not the same work, change in scope and direction of enterprise (Debuque re relocation; Fibreboard re sub-K) b. The action has merely an attenuated affect (and is not w/in ‘term/condition’ of employment) 3. ER affirmative defense a. E.g. Labor costs not a factor in the decision (relocate/sub-K) b. Even if they were, U could not have offered concessions that could have changed the ER’s decision to relocate – aka Same Decision [Fibre; First Nat]

Answer 118

1. Sympathy strikes are OK - worker can honor another U picket even if worker works for secondary ER (Rice Milling, see prob on 925) 2. Publicity proviso - for purpose of 8b4, nothing can prohibit publicity other than picketing (e.g. handbilling) for the purpose of truthfully advising the public, that product produced by ER w/whom U has primary dispute, are distributed by another ER

Answer 119

- direction to support U and not ER - It's a SIGNAL to U supporters to not cross the picket line as a matter of solidarity --- does it mean the same thing today?

Answer 120

(this is area where remedies are diff than other ULPs) - 10(l) requires seeking injunctive relief in federal court [part of Taft-hartly] if NLRB investigates alleged secondary boycott and find rsbl cause its occuring; normally, NLRB has discretion to seek injunctive relief, here, - also, Sec. 303 gives compensatory damages to ER

Answer 121

Primary picketing/boycott - focused on the biz w/whom U has direct dispute, including asking secondary ERs not to do biz w/primary ER Secondary boycott - meant to exert econ pressure on secondary ERs who do biz w/primary ER

Answer 122

* Picketing is a signal not to cross, its not merely informational * Constit right to picket? * Gov can restrict picketing, its treated diff than pure speech * Gov can restrict picketing, its treated diff than pure speech * NOT protected – (1) Picket w/threat of violence is not protected by Constit; (2) Picket w/threat of violence is not protected by Constit

Answer 123

RULE - Handbilling w/effect on secondary ER (who carries primary products) OK as long as (1) ID primary ER; (2) pertains to dispute; [e.g. NLRB prohibitions on secondary boycotts does not apply to handbilling] - DeBartolo I (educational handbilling at the mall) - handbilling is not picketing, its not a signal independent of the content of the message like picketing; - no threat or coercion involved here (no consumers are coerced, the handbill is just educational, peaceful persuasion - recall first case we read) - further, there would be grave first am issues if we said U couldn't make pitch to consumers to protect U, and court wants to avoid constitutional issue when construing a statute

Answer 124

Banners are like handbills and are OK (Obama Bd, 2-1) - no coercion, no threats - just a peaceful appeal to the public, even if theatrical - no confrontation (as picketing presumably is) - this is directed at passing cars - HELD - banner is not w/in NLRA prohibition - B/c its 2-1 Obama Bd, diff Bd or Court may find differently

Answer 125

BRANCH 1 - Union can picket at “ally” ER as if they were the primary ER – a) If U can prove ER2 is doing “struck work” b) and no preexisting pattern of helping BRANCH 2 - Single ER, and as such U may picket as if primary ER 1. common ownership 2. common management 3. centralized control of labor relations (do ERs have separate labor relations people)? 4. interrelatedness of operations ---- Typical arms-length transaction shows NOT intertwining activity/

Answer 126

4 FACTORS to determine whether picketing at non-primary (here ambulatory) situs is OK 1. limited to times when primary situs is present at secondary situs (eg where primary situs is ambulatory and at the time is located at secondary situs) 2. primary situs must be engaged in normal business (otherwise the impact is on a neutral) 3. limited to places reasonably close to primary situs 4. must be disclaimer that your dispute is only with the primary situs

Answer 127

RULE - Picketing at a reserve gate is secondary and illegal if: 1. Gate is strictly separate for secondary EEs 2. work of secondary EEs is unrelated to normal operations of primary ER 3. work done by secondary EEs is of a kind that would not, in absence of labor dispute, require curtailment of normal operations of primary ER

Answer 128

NO - this is LAWFUL; Rice Milling - Its not a violation of 8b4 to appeal to secondary/neutral EEs at primary situs - Even though there is econ pressure on ER2, cuz its biz w/ER1 is denied

Answer 129

keep the disputes b/t EEs and ERs, not to enmesh neutrals and interfere w/commerce

Answer 130

Denver Building case · common situs = where primary and secondary ERs are at same situs, and engaged in same project (usually construction cases), such that U can strike at the common situs w/o violating secondary boycott prohibition · BUT If AN object of picketing is to interfere w/secondary ER (e.g. picket whole construction site to remove non-U independent K) then its secondary and prohibited - the non-U Ind K is not a single ER cuz they are just engaged in arms length biz

Answer 131

PROPER - even if tell them “either honor appeal or we’ll picket customers” at secondary ER [cuz that's a lawful act itself] RULE - OK to ask supervisor (no econ pressure) to stop carrying struck product, who may make biz decision to agree w/U WHY? - first and second provisions of 8b4 must be read in harmony “Harmony between (i) and (ii) is best achieved by construing subsection (i) to prohibit inducement of the managers to withhold their services from the employer, and subsection (ii) to condemn an attempt to induce the exercise of discretion only if the inducement would ‘threaten, coerce or restrain’ that exercise” (Servette) Thus, appeals to managerial discretion are lawful EXCEPTIONS - "as long as" such Publicity does not have the effect of: (1) inducing EEs other than primary EE to refuse to deliver goods (eg truck drivers); 2) cannot induce secondary EE not to perform services (in other words, effect of stopping Safeway EEs from coming into work) --- So U should tell Safeway workers to go to work; and tell truckers to make all deliveries; our handbilling is only directed at consumers

Answer 132

"as long as" such Publicity does not have the effect of: (1) inducing EEs other than primary EE to refuse to deliver goods (eg truck drivers); 2) cannot induce secondary EE not to perform services (in other words, effect of stopping Safeway EEs from coming into work) --- So U should tell Safeway workers to go to work; and tell truckers to make all deliveries; our handbilling is only directed at consumers

Answer 133

Tree Fruit case RULE - picketing at secondary ER is ok if 1) No coercion/targeted at only specific product of primary ER/w/whom U has dispute; and 2) the product is not a substantial portion of secondary ER biz [per Safeco, substantial portion - 90% - - but no hint as to the cutoff (90% v. 1%)] such that impact on secondary ER would be too great - Realistically, if product is more than like 25%, U should just handbill instead of picket, handbilling is safer and under second (publicilty) proviso

Answer 134

- Resolve dispute - Clarify ambiguities in CBA - ID problems w/management what is scope of disputes parties agreed to submit to griev arb? - If CBA says “any dispute” goes to arb – literally any dispute - More typically – “any dispute over application/interpretation of this K”

Answer 135

timelines vary (maybe 10 days to file w/supervisor, few more days to step 2, etc.) – must read CBA carefully

Answer 136

1. Did EE have forewarning of consequence of conduct? 2. Is the rule reasonable? Is rule reasonably related to safe, efficient practice of work 3. Did ER rsbly investigate before decision? 4. Was investigation fair and objective? 5. Is there evidence of guilt? Such that arb can determine 6. Has ER applied the rule evenly in other cases? 7. Was the discipline reasonable? Look at EE’s work history,

Answer 137

1. Express language 2. General clauses in K – e.g. ‘management rights’ clause giving unfettered discretion in an area; or a ‘maintenance of standard’ clause making status quo enforceable as matter of K; or zipper clause 3. Whether K has implied terms – look at past practice how to apply a provision; 4. Look at bargaining history to determine intent 5. Past practice of parties a. How have parties interp’d express language, implied terms; b. what was past practice the company allegedly changed in unilateral action? E.g. what was status quo? 6. Industry practice

Answer 138

Protecting preference for arbitrating CBA disputes 1. Standards for ordering arbitration 2. Standard for enforcing arbitration 3. Public policy exception - Whether remedy ordered by arb violates public policy?

Answer 139

TEST – presumption in favor of arb – Positive Assurance : unless it can be with no doubt, that K is not susceptible to interp that would cover the dispute, then the matter is substantively arbitrable - - strong presumption that parties agreed matter is subst arb POLICY 1. Exhaustion (caselaw development) – internal resolution preferred 2. dispute over merits of what CBA says is for arbitrator (Am Man) New SCOTUS – Thomas says “apply ordinary K law”; concurrence says Steelworkers Trilogy still applies so arb may look at extrinsic evidence beyond text under ordinary K law a. This case presents a crack into this body of law

Answer 140

Essence Test – as long as arb’s decision draws its essence from the K, then its enforceable - e.g., if arb just says “its unfair” w/o stating in the K, then not enforceable; or if SH claim where arb applies only T7 but not K language, then not enforceable - favors enforcement

Answer 141

Goes to Remedy; N/a to reverse an award - Narrow exception - Public policy must be grounded explicitly in statute or case law (not for court to just make up) - Disputes over this exception go to remedy (last case for today) - E.g. EE on drugs shouldn’t be reinstated to work heavy machinery - ISS – should iss whether remedy violates public policy be considered in the arbitration process? Drum says yes in “bramble bush” article [e.g. even if award in favor of cop is correct – is not ‘just cause’ – the arbitrator should have considered public policy of reinstating cop that public doesn’t trust]

Answer 142

1410 Plaza case

Answer 143

- implicit in exclusive rep = duty of fair representation to not discriminate - STANDARD to breach DFR – U must have acted discimrinatorily, arbitratrarily, or in bad faith- (Vaca)

Answer 144

2 ways in federal law 1) ULP to NLRB (Sec. 8 interp’d to cover breach of DFR) but recall limited remedies under NLRB; 2) file in court (fed. Or state) for breach of DFR (can get damages) SoL - borrowed from ULPs (6 months) - Trial by jury Public Sector - must file ULP (in OR) w/ERB

Answer 145

– ER sues both U and ER (Sec. 301 of LMRA - -) ; exhaustion is excused if U breached DFR (e.g. ER violated CBA and U breached duty of DFR – they are inextricably linked)

Answer 146

No - Clayton - b/c the whole point is the U/ER did not engage in the grievance process Exception - if U’s internal process could offer EE complete relief, then EE should exhaust

Answer 147

- DFR STANDARD of review: EE must show invidiuous discrimination, arbitrariness, or bad faith - Filtering out bad cases is U’s job

Answer 148

A union security clause is a provision in a collective bargaining agreement which requires bargaining unit employees to establish and maintain union membership (which is ultimately restricted to the payment of dues and initiation fees) as a condition of employment. Stems from Exclusivity - rationale for making all members of bargaining unit b/c U has DFR to rep all, so only fair for all to pay

Answer 149

- On one hand, American ideal to not belong to any organization I don’t choose to; freedom of association and concept of liberty and invidual rights - OTOH, free rider problem

Answer 150

= illegal – closed shop = cannot get hired unless member of U [Taft-Hartley gave EE rights to refrain from Sec. 7 activity/joining a U]

Answer 151

= lawful under NLRA – where must join U w/in 30 days of hire; BUT, “membership” only refers to financial obligations but not others

Answer 152

member must remain member through end of K

Answer 153

where EE authorizes ER take out dues straight from paycheck

Answer 154

Us run PACs which are separate from U funds; these are voluntary payments Us spend dues money on politics

Answer 155

1. Union sec agr exist that non-member pays in-lieu dues only when ER has agreed to it 2. Private sector – EE has 30 days to join U after hire [but ‘member’ of U only requires financial obligations, so EE usually doesn’t know that] 3. Financial core membership – only duty to pay in-lieu of dues payments for collective bargaining representation 4. Deauthorization – 30% petition for deauthorization (same process to certify U), may be used to strike union security agreement 5. Religious objectors exception to duty to pay any $ to U – but must pay same amount of $ to a charity 6. Private/public – Political Objector – non-members may get rebate for $ spent on political activity unrelated to collective bargaining a. What’s political activity unrelated to collective bargaining? Tough issue, body of law out there i. U has right to organize bargaining power to strengthen its ability to coll barg; ii. Lobbying? Related to coll barg? Maybe, make arguments iii. Support for political candidate= political 7. Reverse preemption of federal law by the states – Section 14(b) the Right to Work in States – Congress said states can enact law that allows EEs to not pay any $ to U (i.e. a right to work law) and that preempts NLRA/duties to pay [26 states have Right to Work laws] a. POLICY ISS – w/26 states w/Right to Work, what’s an EE’s incentive to pay to U? Can just be a free rider

Answer 156

gets rid of free rider problem cuz it relieves U of DFR w/respect to those EEs - Would that fly in private sector? E.g. if non-member in right to work state, then U mustn’t rep - BUT NLRA requires exclusive representation, so that would undermine NLRA - DRUMMONDS says probs of labor law stem from exclusivity – POLICY ISSUE

Answer 157

Abood - But today’s SCOTUS may reconsider - under free association clause; freedom of religion - rationale of free rider and DFR, - but also U cannot spend $ on political activities unrelated to coll barg

Answer 158

- Must notify all members the $ U spends on unrelated to coll barg - Each member has opp to say no and be a political objector and to get rebate - U must give accounting - U must have appeal process for member to challenge accounting, which ends w/arbitration

Answer 159

DISSENT - Holmes (Veghlan) - injunction is wrong because eternal conflict of man to get what he can for his services, and capital to get value for EE services; b/c of collective capital should be collective labor

Answer 160

Pro- Union Policy statement: 1. No freedom of K b/c “the inequality of bargaining power” of individual workers vis a vis corporate employer, and 2. declaring policy to protect union/ union activity to balance power of collective capital via collective bargaining with employee representatives. 3. ER reaction to EE collective action obstructed free flow of commerce

Answer 161

Union wins election - "certification bar" - 1 year bar from date of recognition (see Brooks case on 441) - gives the union a year to conclude a contract, before the employees can petition to throw the union out, or change reps. - The policy is "stability of labor relations" - After the one year the balance tips back to favoring the ees right of free choice.

Answer 162

1. Duty to bargain if ER employs majority of old EEs - depends on majority status on key date: Representative Complement Test [ie a full shift to do the work] a. duty to bargain if majority when: i. job classifications designated for operation were substantially filled ii. operation was in substantially normal production iii. size of complement on that date of normal production iv. the time expected to elapse before substantially larger complement could be at work v. relative certainty of ER's expected expansion - --- EEs interest in being represented asap outweighs ER interest in maximum EE participation in complement b. [recall ER cannot discriminate in hiring based on U membership] c. BUT - ER can set initial terms and conditions of employment while bargaining Only duty to bargain when EE demanded to bargain (cont duty to bar rule)

Answer 163

1. Failing to provide information (relevance vs. ER interest) 2. Unilateral change to mandatory topic during negotiations/w/o impasse 3. Bypass theory - where ER bypasses rep and goes straight to U EEs 4. Refusal to execute formal written K that mirrors agreement after agree at bargaining table (8a5 failure to bargain)

Answer 164

return to status quo ante dynamic vs. static (minority)

Labor Flashcards

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