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Labor Law Checklist

NEED TO WATCH FOR

ANY AGREEMENT that requires the employer not to do business with some other person or business.
o This is a hot cargo clause
o THIS IS ILLEGAL (unless construction)
o Strike to obtain a hot cargo agreement to get the ER to agree to this provisionillegal 8(b)(4)(A) ULP
o Strike to enforce a hot cargo agreement also illegal would be even worse, because would be the strike
directed at neutral party (the one the ER did business with)

Whenever there is a walkout or a strike
o ASK: is there an ARBITRATION CLAUSE? If there is an arbitration clause, this walking out or work
stoppage, however peaceful, will be unlawful, because it has been waived by the union. The ER can get a
Boys Market injunction. Even if there is no explicit no-strike clause, under Lucas Flour, A => NS clause
(unless facts show ER tried and failed to get such a clause into the contract). (and for BMI: show
likelihood of irreparable harm greater than harm to the U being enjoined)

*Whenever ANYONE IS FIRED, DISHCARGED, laid off, not hired back
o Was this possibly, arguably BECAUSE OF UNION ANIMUS?
o Was it because the UNION came in and raised prices? => argue both sides
ER: economic reasons, play up profitabily, sound business motive, sound economic reasons, ex.
Adkins (trucker mechanics)
Union: because of the union, play up animus
o BUT, when fired/laid off/closed, was the ER terminating its business?
If the ER was terminating its business, can fire for ANY reason

**When someone fails to bargain, when there is an election that seems unfair (for not laboratory
conditions)
o Dont forget about GISSEL AS A REMEDY => Gissel as an alternative to voluntary recognition or
election: where there are majority and there are ULPs, Bd. can order this as a remedy (but not if no
majority, Gourmet Foods rejected), have Gissel bargain where the ULPs committed are so serious as to
negative the possilbility of a new, fair election.
If employees are respecting another primary picket line => refusing to cross a picket line, or sympathy
strike, this is protected, concerted activity.
o ER can get around protection by having no sympathy strike clause though.

Laboratory conditions requires that free choice be disrupted => argue whether the conditions that occurred
here really inflicted with EE free choice
o But DOESNT need to find an ULP conduct that falls short of coercive threat/inducement/promise can
interfere w/lab conditions
o Argue conflicting policies - on the one hand, policy about false statements, Board only looks at
statements if Board document or forgery because people are expected to otherwise know, OTOH Board
policy about not allowing ER inducements, and racial statements suggests people cant watch out for their
own interests.

If employees are supporting each other more broadly OR if soliciting between employees, OR if ER is infringing
upon the BU employees rights to communicate with employees from another BU (Guardsman example)
o Employee for the Act: def- Any employee, and shall not be limited to the employees of a particular
employee.

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o Generally, employees have the right to speak about WTC of employment with other employees and
still concerted, protected activity (ex. Eastex) - exception: non-union organizers, even if they are
employees of someone.

Someone being QUESTIONED?
o INTERVIEW? Weingarten
o Is it like a poll? Very strict 5-factor test.
o **Is it like interrogation? Lorben factors, totality of circs.

Remedies
o Always consider Gissel bargaining order
are there ULPs here that make this unlikely there will a free and fair election, or was the
atmosphere so poisoned can have Gissel bargaining order
is someone refusing to bargain? Gissel
o Would this be a place that 10(j) injunction would be appropriate? would be discretionary for the district ct
if just and proper
UNION VIOLENCE
Prevent ER from flagrant ULPs
Stop ER from closing operation or liquidating assets to avoid backpay
o Just because nonviolent doesnt mean protected
Union sitdown = nonviolent
Union slowdown = nonviolent
But because these are during the workday, they are unlawful
Strikes during 60 day cooling off = peaceful but if violate, will be unprotected
**be on guard if strike is in pursuit of featherbedding bargaining clause=> only if some work will
this not be ULP, if striking over no work, WILL be ULP. (Gamble)
And of course, secondary boycott and hot cargo could be peaceful but will be unprotected

o Work stoppage doesnt always mean protected either
If in pursuit of permissive subject
If DURING WORK hours

o IS ONE OF THESE TYPES OF STRIKES OCCURING? These are all illegal strikes
Illegal Primary Strikes Secondary Activitiy
Violent strikes Hot cargo provisions strikes (seeking to obtain
hot cargo clause, or enforce)
Strikes during cooling off period R/O strike when there is certified union in
place
Slowdown Work-assignment dispute
Featherbedding strike (when meets narrow rule)
Striking for a larger bargaining unit
-cant strike in support for larger bargaining
than those certified by the Board
(would change who was majority rep)


Breach of the duty of fair representation is an ULP! Union can be enjoined to stop from violating the duty of
fair representation. NLRB codified DFR as a ULP.
o DFR cases: Steele, Huffman, Hines (WAS)
What happens when a contract expires?
o First, sixty days prior to the contract expiration, the union must notify the company in writing of its
intention to renegotiate the labor contract. The union then begins preparing for negotiations by selecting a

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bargaining committee, formulating proposals that will be given to management's negotiating team, doing
research necessary to support the union's proposals, developing a communications strategy for the
members during the negotiations as well as with the public, if difficult negotiations are expected. If the
union and management are still in negotiations when the contract expires, the union has three choice
o Second, If the union and management are still in negotiations when the contract expires, the union has
three choices:
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To accept management's proposals;
To extend the contract expiration date with the joint agreement of both the union and management
(a common choice); or
To agree with the employer that they cannot reach settlement and declare an impasse in which the
employer is free to implement its final offer and the union is free to strike if the members vote in
favor of that option. More than 95 percent of contracts are settled without workers having to strike



ISSUES CHECKLIST

NLRBs Jurisdiction: to take the case NLRB must have jxn
o If ULP: filed within 6 months? Six month SOL for ULPs.
o Employer? => must affect commerce, must be private sector, cannot be religious (excessive
entanglement), cannot be public-affiliated entity (charter school=similar enough to public school to be
excluded), cannot be air/rail (RLA), cannot be labor org.
o Employee
If not employee, generally NOT protected under the Act.
Is the person within one of these groups: if so, they are excluded from the Act:
are they an agricultural worker, domestic worker, someone employed by parent or
spouse, air or rail carrier covered by RLA?
is this an independent contractor? Apply common right of control test: rt to exercise
control over the manner and means by which the individual performs services.
Is this person someone whose work has ceased as a consequence or in connection with any
current labor dispute or because of an ULP? ex. strikers, unfairly discharged people,
anyone with an 8a3 charge => still are employees
o NOT to supervisors
Is this a supervisor?
Does the individual meet these three requirements (Health Care Retirement Corp
nonprofessional nurses were supervisors)
o (1) Has the right kind of authority
2(11): authority to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or
effectively recommend such action.
o (2) The exercise of the authority requires independent judgment
o (3) The individual holds this authority in the interest of the employer
Healthcare Retirmenet => work primarily patient care; nonprofessional conflicts
w/professional EEs who also use indpt judgment being employees
If this is a supervisor:

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Can be in a union with the rank-and-file employees (ex. police lieutenant, foreman)
and be in the bargaining unit, but they are not protected for the act, will be a
permissive subject of bargaining to broaden the BU to supervisors.
Can have their own unions of supervisors unions but will also not be within the
Act.
Was the supervisor fired or discharged or had some action against?
Generally NOT protected because not within Act
o Supervisor is NOT protected for pro-union activities (Parker Robb)
But also sometimes protected => if discharged because of these activities, can have
backpay, can have reinstatement.
o Can super show that discharge interferes with EEs section 7 rights?
o Discharged for refusing to commit ULPs?
o Gave adverse testimony to Bd?
o For processing EEs grievance?
o As a pretext for discharging a pro-union crew?
o For failing to prevent organization?
o NOT to managers, managerial
Managerial, def: is this someone who expresses and makes operative decisions for their ER,
both including and other than policy decisions that are associated with labor relations?
Does this person make policies, exercise management or administrative power for the ER?
Compare to the college faculty of Yeshiva University there is management power, they are
making decisions over the direction of the entity
substantial, independent decision-making authority on policy and operations
Making management policies, dealing with other EEs? would be managerial
o Is this someone with a learned skill? => professional
Professionals ARE within employees of the Act
But special rules for bargaining units
o Job applicants ARE within employees of the Act hence, rules for salts (genuine interest test)
o Retired persons not employees limited to working employees (Pittsburg Plate Glass)
o Arbitration issues that implicate ULP => Board will accept or defer jxn on a CBA violation -- Dubo,
Collayer Deferment: if party charging ULP files grievance at same time, Bd will defer processing
on ULP; Collayer: parties have contracted for an arbitrator, so the Board will avoid substituting its
own processes for their agreed-upon dispute resolution and defer where there are factors including:
Contract calls for binding and final arbitration; dispute clearly requires interpretation of the
CB; the dispute is contractual in nature?
Ex. does the dispute involve a collective right of employees? => looks like a collective
right. But also an individual claim is well-suited for deferment (United Technologies).
If yes => Board will defer processing claim until after grievance-arbitration.
Policy => Board has strong deferral policy in refusal to bargain cases

Campaign: Communication
o Is anyone talking to each other? Are they employees? Are they talking about wages, terms, or
conditions of employment?
Concerted action: def: whenever two or more employees get together and discuss wages,
terms, conditions of employment. This is protected by NRLA.
Facebook? Internet, email, Twitter, other things that could be similar?
Requirements for protected communications: (Brockton) Is this communication:
Reasonable?
Concerted? - must be to another person
About the wages, terms, conditions of employment? (a mandatory subject)
Does not need to have made statement in workplace (Facebook)

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EE does NOT need to have a union in place or not.
**Implications: Communications are concerted, protected activity. The EE then not be fired
for the Facebook, etc. comments because they are now protected 7 activity, if is fired, is ULP
8a3 by ER.
o Is there a company communications policy? (Brockton Hospital any info, Cintas confidentiality,
Guardsman no fraternization)
Could EEs reasonably interpret ERs policy to be a prohibition against section 7 rights?
If so, section 7 rights will be infringed upon.
Doesnt matter if didnt actually have bad results
No intent requirement
Will be 8a1 ULP for this policy infringing on protected activity (conversations between 2+
EEs about wages, terms, conditions).
Campaign: Solicitation
o What is the employer doing here?
Broad nonsoliciation policy? Any rule that prohibits solicitation during non-working time =
presumptively invalid (Republican Aviation)
Doesnt matter if no anti-union animus for 8a1, blanket ban on solicitation (that includes
nonworking times) is presumptively invalid, unless ER can show that there are special
circumstances that make the rules necessary to maintain production or discipline
Retail: would this interfere w/customers in sales area? Can ban, but cant be 8a3
discrim.
Healthcare institutions: rule applies for PATIENT CARE areas only, not visitors =>
ER cannot ban in areas where would not disrupt health care operations or disturb
patients (Beth Israel, cafeteria)
ER will argue: we are like retail, like hospital, have concern w/public image (necessary to
maintain production)
o In his/her actions, is the employer obstructing a flow of access that is protected by Section 7?
Competing rights = ER right to restrict solicitation and distribution of prounion material to
off-duty time and nonworking areas; EE has 7 right to communicate with other EEs on
different shifts (during this EEs nonworking time)
Who is doing the talking or seeking the access?
If employees => oral solicitation: Republic Aviation: EE have absolute rt to solicit
other EEs during nonworking times, and if an ER tries to stop this, violates 8a1
o Nonworking times: includes during the working hours paid breaks, lunch
hour, to and from lunch, rest periods, cafeteria
o During working times: ER can limit prounion solicitation, but must do it
consistently. (Register Guard)
If employees => literature distribution
o Working areas: can prohibit during both nonworking and working time
BUT if other types of literature distribution are allowed in these areas,
cannot discriminate against U literature
o Nonworking areas: cannot prohibit during nonworking time, unless show
special considerations: patient, retail). Concern = litter, property destruction.
nonworking areas = exit, restrooms, parking lots
Non-employee organizers?
o Salts? Protected under 7 if GC shows genuinely interested in employment
relationship with ER
Salt can lie and still get job (Hartman); but salt not protected for non-
7 activity (The Industrial Co. Southeast)

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o If not: An Er may take rsbl steps to ensure that nonemployees are prevented
from trespassing on its property. ER can deny access unless no alternative
means available: Seafarers Unon, logging camp (Lechmere).
Doesnt matter if U didnt have good luck getting people
pamphlets on windshields sufficient Lechemere
Property interest = what is in lease, parking lot, but not public
property.
Who is the audience?
Is it the employers EEs?
OR is the suppliers or customers of the employers? => likely to deny access
o Ex. patients in the hospital- could not discuss with patients
o Customers in retail
Where is this taking place?
Ers property => Lechmere rule above, ER has right to kick out non-EE solicitor
Is this in a mall? Cannot have broad nonsoliciation policy in a mall.
Shopping center? Hudgens: no const right to picket at shopping center, can be
threatened w/criminal trespass. Lechmere: could apply to solicitors.
Are the employees using the ERs property?
EEs do NOT have statutory right to use ERs property for section 7 matters, section 7
protects rt not means.
No rt to use the ERs bulletin board, email (Register Guard), videocamera, copy
machine for union activities
o Bulletin board is mandatory subject of bargaining but is not substitute for
solicitation
o ER permitted to impose restrictions about use of his property but cant
discrimination against the union - but babysitting requests are different
Campaign: Union insignia, union buttons
o Presumptive right to wear union insignia
o But that right is not absolute: can limit union insignia, buttons to maintain image, protect certain parts
of ERs image.
Is this retail business? Not only clothes, any customer interaction
Legitimate business reason? contact with customers?)
Healthcare facility => contact with patients (Beth Israel: contact with patients? how many
patients in the area?
Have to balance ERs discipline and property rights: buttons cannot criticize ER, msut be safe,
can be banned if uniform policy. And cannot restrain 7 rt not to wear a button (U uniform).
ER will argue: I needed to preserve my image, was within rt to discipline, U will argue: this
was not within one of those exceptional circumstances
Campaign: Campaign Tactics, Speech
o (1) Were there any ULPs by the employer?
Didnt submit Excelsior List?
U will argue that ER didnt give them Excelsior List before the elction, ER has to give
the union the name sof employees 7 days in advance, ER must turn this list over to RD
of Board, doesnt matter whether ER sent out his or her own materials
Captive audience speech issues timing?
**Think of captive audience speeches broadly ex. Register Guard email. Anytime
speech made during company hours, on company time, and on company property to
the EEs (ex. broaden to email).
Was there a captive audience speech within 24 hours of election? (Peerless Plywood)
=> If yes, Board will set aside election

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o Also to Us: no megaphone on truck (but U has no right to demand equal
access to shop floor)
o BUT allowed within 24 hours: propaganda, speeches where attendance
voluntary and on EEs own time
Employers Speech
ER speech is generally sheltered, but cant have threats or promises of benefits. 8(c).
Not all ER speech or literature necessarily interferes with EE free choice. Virginia
Electric. ER can share opinion about U if not coercive.
But under, Gissel: If ER makes a prediction, is that prediction:
o Based on objective facts,
o Predicting demonstrably probable consequences, AND
o Beyond the control of the employer OR a decision already arrived at
Threats
o Direct threats
o Implied threats predictions (plants gonna close if union in here - Gissel)
Evaluate in larger context of EE free choice bargaining going to
start on a clean table depends, if other ULPs more likely (in Shaw,
start from scratch = appropriate hard bargaining attitude, not
coercive)
Must furnish information if requested if make statements about
financial future (demonstrably probable) - Dal Tex
If have basis in objective fact: permissible predictions, can do it
o ER will argue: not threats, permissible predictions as to the precise effects,
based on the demonstrably probsable consequences.
o U will argue: threat, whatever ER says is likely to be taken as coercion by
EEs, limiting choice (and even if not ULP, laboratory conditions).
suggestions can be coercive if have been in past based on experience
o Is there any policy that is threatening, or any other written statement,
document that suggests business will shut down, or some bad consequences
will happen if union comes in? ex. all operatios will cease if unionized
policy
Promises about benefits
o Did the ER promise benefits? youll get a raise, with or without the union
o Did the ER promise to withdraw benefits if U won?
o If yes => ULP, ER cannot make promises
o Exception: if pattern in place
if do something every year, this will not be impermissible promise,
just something that is going to happen can promise again xmas
turkey
gift can be given if its a pattern
o Union can make promises
**Inducements
o Even if it looks nice, did ER provide any benefits during the campaign?
o **Board will presume that benefits given before an election are unlawful
(Exchange Parts) BUT the benefit could be okay for another reason (Bd will
look at factors OL p.12.
o Were these regularly scheduled economic benefits prior to the economic
campaign?
o (2) Were there any ULPs by the union?
Union is also barred from inducements Savair (cant buy the votes by offering to waive fee
if sign recognition card); Nestle (class action announced night before)

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But distinguish=> did U waive the fee for all employees? not seen as unlawful
pressure, OK.
Union not barred from promises though
But union cannot coerce anyone in 7 rights, which include rt to refrain from joining/assisting
union
Was there any physical restraint or coercion by the union?
Destruction of company property? Could violate 8(b) as coercion to join nion.
Can also have union coercion during term of unions tenure if would coerce EEs into
joining union, will be union ULP ex. use of a health fund solely for benefit of union
members
o (3) Even if there werent any ULPs, could the losing party still obtain a new election under the
laboratory conditions rule? (Has something upset requisite laboratory conditions? also can overturn
election results)
Laboratory conditions => General Shoe: Board will set aside election if conduct of ER
(1) falls below the Boards standards for a laboratory setting of a fair election, and
(2) direct proof of widespread dissemination (Spring Industries)
(3) Bd will weigh other factors: how close margin of victory was, how close in time
conduct occurred to election (ex. Nestle night before)
Union can fall below laboratory conditions also
Ex. forging Board documents by union would fall below lab conditions
o Was their third party speech? ER can be held accountable based on standards of apparent agency
Apparent agency: would a person think that the third party was acting as ERs agency? If yes,
ER can be held accountable for the speech (ex. threats about if U comes in from 3rd party)
Campaign: Other Possible ULPs key here is always coercion. U argues this was coercion, ER says
preserved free choice. 8a1 = interfere, restrain, coerce EEs in the practice of their section 7 rights; lab
o Is anyone asking questions?
Interrogation: Is a supervisor talking to employee at union?
Might be interrogation => non-anonymous questioning, often spontaneous, of an
employer to an employee about the union
If interrogation: apply the Lorben Corp test: would an individual or onlooker
reasonably feel coerced under all of the circumstances?
o (1) Background: what is the history of anti-union discrimination? any history
of union animus (if you are ER, minimize; if you are U, play up past
ULPs/coercion)
o (2) Nature of info: what is the nature of the information sought? Did the
interrogator appear to be seeking information upon which to base an action
against the employee? (if you are U: this is the kind of info that would be
used)
how extensive was the questioning? very extensive or quick exchange?
detailed information sought?
o (3) Place and Method of questioning: called into the bosss office? air of
unnatural formality about it? (if so: more likely coercion, rsbly feel coerced)
o (4) Identity of the Questioner: how high on the chain of authority was the
questioner?
o But these factors are not exhaustive: totality of circumstances, openness of
thee employee about their union affiliation to ER, friendship btw ER and EE.
Polling: Is this a comprehensive inquiry of large groups of workers to ascertain their union
views?
Struckness: will be 8a1 ULP unless the following safeguards are met:
o (1) The purpose of the poll is to determine the truth of a unions claim of
majority

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o (2) This purpose is communicated to the employees
o (3) Assurances against reprisals are given
o (4) ER has not otherwise engaged in ULP or created a coercive atmosphere
o (5) The employees are polled by secret ballot.
U will argue: created a coercive atmosphere, many other actions, test is meant to be
a strict test (response by Bd), polling is inherently coercive.
ER will argue: free choice was preserved, and met factors, was in good faith, was in
double-bind.
ERs polling arguments why needs to poll
o If pre-election: ER is trying to facilitate labor peace and voluntarily recognize,
but it will be ULP if ER recognizes a minority union (8a2), even if does so in
good faith Ladies Garment
o If while union is bargaining agent: ER does not think that there is majority
support anymore for the union, but Board has changed the test for employers
withdrawal of recognition, must have actually lost majority support before can
withdraw, trying to ascertain employees view so can comply with Boards
rule. Levitz Furniture.
Is the union doing these activities, not the employer? (ER might argue union did the same)
Union polling: pre-election polling done by the union is generally not considered
grounds for setting aside an election, not seen as coercive.
Union interrogation: union does not
o Is employer distributing things in a way that could function as polling, or requesting participation in
a way that could count people?
Participation in video, handing out buttons, mugs, stickers, signing interest sheet, any other
anti-U paraphernalia
but union can have video, photographs
ER will argue: was not a method of counting, was just countering the unions stickers,
campaigning. U will argue: this was a comprehensive inquiry of large groups of workers, it
must meet the strict standards for polling of employees, polling is inherently coercive, the act
of polling itself (any attempt to ascertain views of EEs as a whole) generally tends to cause
fear of threats.
o If you are ER: argue that not questions, conversation, ER speech protected; argue that not polling but
interrogation under more flexible Lorben Corp test; if you are union, argue that this was closer to
polling.
Surveillance
o Can the action be construed as spying, watching, or looking at what the union is doing?
o Definition: supervisors stationing themselves near union meetings and observing and identifying
employees attending the meeting, following union supporters to see where they go after work,
requesting or directing EEs to report on union activities of co-workers.
o Also cannot have: cameras in break-rooms, or for the employees to think they are being watched.
o Did the ER put in a broad surveillance policy after union begins election campaign? will be ULP
o Monitoring, watching, spying, making it sound like the ER is spying
o ER will argue: has right to discipline. Or that is one of these permissible ways to engage in
survieillance:
Was only watching the non-employee union organizers who were on company property
(Lechmere)
Surveillance was bargained for (if this was after CBA)
Longstanding practice, not because union animus, done to maintain quality control, 8a1 is
about balancing the ERs property/discipline interests against the unions right to engage in s7
activities
o If surveillance and union loses => election may be set aside

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but there must be proof that ER caused or authorized the surveillance before it can be found
guilty of an ULP
Other kinds of language during campaign
o False Statements
Board will NOT generally review the truth of campaign statements people can decide what
to believe for themselves. Two exceptions the Board will set aside an election where the
winning party has:
(1) Forged a document (something that by its nature conceals that it was forged)
(2) Misleadingly misused or altered Board documents (to suggest that Board was on
Us side) (ex. putting X on the sample ballot)
But, if can prove that there was wide dissemination (by direct proof, Spring Industries) and
that this upset employee free choice and laboratory conditions, Board might set aside
election for impact of false statement on election.
Rule applies even if false statement is made within 24 hours of thee election (AWB Metal).
o Racial content of statements
Sewell: where the atmosphere is inflamed by racial prejudice, and reasoned decision is an
impossibility, Bd will set aside election as not meeting laboratory conditions (ER
calculatedly tried to play on EEs racial prejudice to reject the union).
Can have statements with racial content if:
Only has minor or isolate references to race
The statements with racial overtones are (1) temperate in tone, (2) germane to the
campaign: relevant to the campaign, suitable topic of the campaign (ex. U contributes
to civil rights groups), (3) factually correct.
Can be by either U or employer KI Corp (U tried to inflame prejudice, sent letter from
different Japanese businessman).
When close question, resolve against person who made statement
Employer Domination and Assistance
o Employer here would be any supervisor acting as an agent of the ER rules of agency cover the
ERs responsibility for subordinates
o Domination - def: the actions of the employer are domination, assistance, or interference, and the
group getting the domination, assistance, or interference is a labor organization. Electromation test.
(1) Is there a labor organization? Doesnt need to be a formal labor organization. Instead:
Employees participate not supervisors, not managers
Representative EEs are participating in a representative capacity
Organization broadly deals with ER there are some bilateral mechanisms.
(U will argue: employer was unlawfully assisting here, is labor org, is ULP; ER will
argue not labor organization)
(2) Is the employer dominating the labor organization?
Monetarily supports
Creates; determines continuing existence; determines structure and function of
Supervises the agenda or procedure of meetings
But NOT: if the ER is simply expressing favor of one union over another (but also
cannot coerce employees in their views).
But NOT: where the labor org is only unilateral (suggestion box), or where the
committee is managers, college professors exercising discretion about future of
college (managers fails 1st), or solely an employee committee that resolves
grievances w/o interaction with mgmt.
Do not need to show anti-union motive.
Remedy: dis-establish labor organization if ER has dominated the organization
o Assistance def: improperly influencing or unlawfully assisting a labor org, again no anti-U animus
required for union to prove ULP

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Company property where rival unions
Did the ER allow access to company property to one union and not the others? (access
to facilities, to company services: legal counsel, office space, secretary, equipment,
copier) Will be ULP
Distinguish: if there are no rival unions and ER permitted access to a union, this
would be okay if promptly recognized the union after majority support
Solicit employees to sign withdrawal cards per se violation of 8a2
Assist with decertification petition per se violation of 8a2
Allowing union to conduct meetings during paid work time
Exerting pressure on EEs to join a specific union
Recognizing independent inside union over a national union
*Recognizing a minority union, even if in good faith automatic, per se violation of 8a2
(Ladies Garment) (unless 8(f) pre-hire agreement in construction industry)
However, ER still has duty to bargain with the incumbent union even if there is a rival
elections petition (RCA Del Caribe), incumbent union has presumption of majority
status, ER can only withdraw recognition if actual knowledge that has lost majority,
and a rival election petition only requires a 10% showing of interest by the rival union.
o ERs Duty of Neutrality for Rival Unions Midwest Piping Doctrine
Midwest Piping Doctrine: ER violates the Act if it recognizes and enters into one contract
when another has filed a petition for an election with the Board and representation
proceedings are pending. ER has an obligation to be neutral during an election.
Cannot confer recognition, cannot make up CBA before union gets majority status
CAN: have letter of agreement
When Midwest Piping Doctrine applies
If there is an incumbent union and no decert. petition, no duty of neutrality
At the point the 2nd union files its petition, the duty of neutrality kicks in => rival
unions question concerning recognition triggers duty of neutrality for employer, even
if one of the unions shows it has a majority.
Midwest Piping analysis
(1) Are there rival unions soliciting?
If there are no rival unions, ER can voluntarily recognize the union if there is 51%
showing of interest in the cards.
(2) Have the rival unions filed a petition? ER will owe duty f neutrality to rival unions
Bruckner: employer risks 8(a)(2) violation if recognizes either, even if one has
majority, or if enters into contract. Midwest Piping: ER has obligation to be neutral.
No duty of neutrality prior to petition ER is is free to recognize a union if that union
represents "an uncoerced, unassisted majority" of employees. (Bruckner Nursing)
However, even if there is a petition filed, ER still has duty to bargain with the
incumbent even if rival filed a petition (RCA).
(3) Has ER favored one of the unions, provided assistance, done anything less than duty of
neutrality?
Cannot provide assistance to one union and not the other (property, access, copier,
secretary, money).
Cannot enter into a CBA with a union before they have majority support (even if
non-rival, unless construction) (Majestic Weaving)
Can make a letter of agreement about the goals for bargaining (Dana Corp)
o ER will argue: this was a letter of agreement, not a CBA, we were not
providing assistance to one of the rival unions, were only setting up a
cooperative framewor
Protection from Employer Discrimination
o (1) Was the employees conduct or activity protected?

12
If the employees actions were protected, concerted activity, then the ERs response (if firing,
layoff, change in benefits), will violate 8a3.
Concerted activity about wages, terms, conditions of employment or other mutual aid
and protection
o Does NOT require the union, only requires 2 or more employees (Washington
Aluminium: EEs walked off because too cold, Jasper was only 2 who thought
bad lighting).
o Spokesperson, constructive spokesperson (if non-unionzied)
o Interboro doctrine ((1) reasonably directed to a right in the collective
bargaining agreement, and (2) statement or action is based on EEs rsbl belief
that is being asked to perform a task not required to be performed or conflicts
with CBA).
o Personal griping is not protected
For mutual aid and protection
o Not about third parties EEs could be disciplined where effort to improve
conditions of patients, not about employment relationship (Orchard Park, Five
Star)
o Weingarten rules for interviews of union EEs, NOT for interviews of non-
union EEs (IBM)
Protected activity
o Peaceful work stoppage
o Safety-related protest
o Employees will engage in unprotected activity when:
Violence
Waived means: striking if there is a no-strike clause (Boys Market;
bargaining directly with ER when union in place (wildcat strikes,
Emporium Capwell)
Indefensible, disloyal (product disparagement, breach of confidential
information, false allegations or affadavits)
Uncommon risk of injury (Marshall Car Wheel)
Slowdowns (Elk Lumber: they thought they should be getting paid
more) or other work stoppage while still on paid time, in the
workplace
BUT if sympathy strike, could be protected as sympathy strike,
refusal of these EEs to cross picket line
Because a supervisor was getting disciplined or supervisor was
discharged for a management issue.
But protected if walked off because: supervisor was protesting
ULP.
SIGNAL PICKETING
SECONDARY BOYCOTT
HOT CARGO CLAUSE
Solicitation, literature distribution, communication (facebook comments)
Strike anything done by ER in reaction to a strike will be discrimination, strike is protected
Being in a union, union-related; being fired for pro-union activities
o (2) Adverse action: not only firing BUT IF FIRING, RAISE 8a3 ISSUE
Laid off, fired, discharged, replaced
Favoring one group of EEs over the other because of pro-unionactivitie s
Not being hired because of pro-union Phelps Dodge (remedy=reinstatement + backpay with
DTM)

13
Also: changing benefits, giving benefits to strike replacements, unequal benefits between
union and non-union people, benefits that are affected because someone participated in
protected activity.
Erie Resistor: Employers cant give super-seniority to permanent replacements for
layoff/recall purposes
Rubatex Corp: ER cant give post-strike bonuses to those who worked during strike not
supported by sufficient valid business justification
o (3) Was the ERs conduct motivated by this protected conduct? Boards burden-shifting framework
(1) Burden on Board: GC has burden of showing that anti-union animus was a motivating
factor in the ERs decision:
Describes adverse effect
Plus evidence that there was some form of discrimination, or that ER believed or knew
that the person engaged in some protected activity
(2) Burden shifts to ER: must show same thing would have happened even if EE had not
engaged in protected conduct: ex. sound business justification. (strike benefits: operational
needs, loss of customers, public safety, extreme situation; normal discharge: couldnt pay
union wage rates: *issue whether is anti-union animus, Adkins held was not, or that employee
was just a lousy EE)
If ER fails to rebut, GC will prevail regardless of the degree of motive involved
o Therefore has proven that anti-U animus was substantial or motivating factor
in addition to the legit reason.
OR, GC may prove employers legit reason was a pretext for discrimination
o Budd Mfg (accumulation of offenses was pretext)
=
(4) HOWEVER
If the ERs conduct is inherently destructive of U membership, Board may assume
an antiunion motive, disregard evidence of business purpose, and find a violation w/o
indpt proof of motive Great Dane (typically post-strike).
(a) Determine effect on EEs: inherently destructive on important employee rights OR
comparatively slight impact on EE rights?
(b) Test will depend on if comparatively slight or inherently destructive
o If comparatively slight, GC still have to show motive, as above, ER can refute
by showing business justification.
o If inherently destructive: no proof of anti-union motive needed. B
Board can still find ULP even if no finding of anti-union animus from
the impact; if offer business justification, Bd. will balance ERs
right/business justification with Section 7 right of EEs
Policy consideration: would the hiring/firing/discharge chill union animus? if someones
conduct = so extreme and they are fired, not threat to union activity (Mueller Brass).
o Was the ER discouraging union participation?
Thiis will also be 8a3
Was there strikebreaking? => when offering inducements (ex. Erie: super-seniority) to those
who leave the strike or to strike replacements
Withdrawal of vested benefits from striking EEs? ex. vacation pay (Great Dane)
Was there discrimination regarding union personnel? ex. Metropolitan Edison will
discourage
Partial lockout based on protected activity? This will also be 8a3 ULP
o Unions Hiring/Firing Discrimination
Legal: union shop (membership in union is compulsory after employment, arrangements are
legal provided U is majority rep) but membership must be able to be satisfied by payment of
dues (only payment of dues can be demanded). union security clause gets this

14
Illegal in RTW states
Agency shop: full membership is not required, but all EEs must pay dues and intiation fees
legal
Illegal in RTW states
Closed shop: union membership required before hiring illegal, 8a3
Hiring hall: Union refers employee to ER legal, unless there is discrimination on the basis of
union membership in making referrals (even though often is anyway)
o Partial Closings, Runaway Shops, Going Out of Business => ANALYZE UNDER 8a3
When the union came in, or in response to union animus, did the employer:
Move some of the bargaining units work? Ex. Regal Cinemas
Move the entire business? (runaway shop)
Make ANY CHANGE where because of COSTS?
o Specifically if made a change because of union wage scales
o Could make argument of anti-union discrimination
o Because union has higher costs
o But likely will not be accepted, still economic motive
Partial closing Adkins
Test: 8a3, burden-shifting: subject to Darlington, an ER may suspend part of its
operations or change its business methods as long as the change in operations is not
motivated by anti-union animus
Partial closing of a subsidiary Darlington
Special Darlington test if still have other business interests when close
The closing is an ULP (8a3) if:
o (1) it was motivated by a purpose to chill unionism in any of the remaining
plants of the single ER, and
o (2) ER reasonably could have foreseen that closing would have that effect.
Remedies order to reopen if feasible or backpay from point of closure
Runaway shop after union comes in, business closes down and moves to new state/area so
that union has to organize again
Test: 8a3, burden-shifting (1) GC can establish anti-U animus by timing of
relocation; (2) ER has to rebut with business motive/would have reached decision
anyway even if not union.
o Generally must have other new economic factor to show that motivate you
besides the union
o But Lassing, mgmt. friendly circuit, Union was new new econ. factor
If ER, emphasize that union was an economic consideration, ~Adkins.
If union, emphasize other conduct that heightens inference of anti-U animus
BUT Relocating once there is a union involved
Can relocate if bargain over effects
COA may overturn Bds decision if finds that primary motive for relocation was
business necessity issues Rapid Bindery
Going Out of Business ok for any reason, even anti-U animus
I will close the shop if union wins => ULP
Actually closing the shop if union wins => NOT ULP
o Remedies for ULP Violations -- was there a ULP? If so, consider the full path, **dont forget what
the Board can do
Reinstatement can have reinstatement even if it was for a hire, and the employee has
obtained equivalent employment (but will be subject to DTM for backpay)
Backpay -- **ALWAYS subject to DTM
Even for ULP strikers their reinstatement with backpay will be limited if they dont
mitigate their damages

15
Rule: any backpay award is subject to EEs duty to mitigate, will be reduced if there
were substantially equivalent jobs in the relevant geographic area and the EE unrsbly
failed to apply for those jobs
o burden on ER to show jobs in the geographic area
o burden on EE to show reasonably applied for those jobs (St. George
Warehouse)
elderly, lack of skill, not exceptions
Cease and desist order
Board issues order telling employer to stop violating the act
Must post the ordernormally ers post where ULP
Extraordinary remedies
Corporate wide posting remedies, etc ex. reading notice to all employees, posting on
internet
Paying NRLBs litigation expenses, etc
Giving union access to the plant
Reopen plants that have been closed
Injunctions
10(j) Injunctions discretionary for district ct to issue idea is emergency
injunction
o Prequisties: RD has issued complaint, and ULP is pending or in ALJ, Bd,
COA
o Requirements: district court must believe injunctive relief is just and proper:
irreparable injury, harm possible to nonmoving party, likelihood of moving
partys success on the merits, public interest
o Often for UNION VIOLENCE, prevent ER from flagrant ULPs, to stop ER
from closing operation or liquidating assets to avoid backpay
10(l) Injunctions
Bargaining Orders - order to bargain without having an election, without voluntary
recognition
Boards only affirmative remedy but if Board finds, will withhold election or set it
aside and instead issue a bargaining order as a remedy for the various violatios.
Two situations when Board will order bargaining order
o (1) ER has committed so many ULPs during election that destroy change for
fair and free election + union has majority of cards
o (2) ULP for employer to refuse to bargain with the rep chosen under 9a
Requirements for ULP Gissel Bargaining Order
o Union can demonstrate prior majority support
o Cards were unambiguous on their face
Cumberland Shoe doctrine for card check: cards cant say that they are
being solely or exclusively used to get an election, if so, authorization
will be invalid
o ER had committed ULPs, and the changes of having a fair and free election
were slight because of the severity of the ULPs (Linden Lumber: no Gissel if
no ULPs)
o Board also considers factors: presence of hallmark or egregious violations
(ULP must be pervasive); number of EEs affected; identity of perpetrators;
timing of ULP (how close to election); change in circumstances after the
violations
The Election

16
o No review of election (representation) issues unless Leedom v. Kyle, only when the Bd acts in excess
of its powers by contravening the Act on its face ex. professionals have to vote to be
w/nonprofessional rule
not where based on factual determinations Boire v. Greyhound, Ridgewood College
o Election petition
Kinds of petitions
Is this a petition for certification?
o Must have 30% interest (from cards) if election petition
o Must have 10% interest if challenging a rival union
o If are the incumbent union, need only 1 card
Petition for decertification
o By EEs in the bargaining unit, or by rival union w/showing of interest from
BU EEs
o 30% interest required
o Cant do it during irrebuttable presumptions: k bar, election bar
o ER cant taint w/unlawful assistance
o Decertification election will also trigger 1 year election bar
Employers RM petition where ER good faith basis in uncertainty that the union
retains majority support or where rival unions.
o good faith basis in uncertainty = more lenient than good faith reasonable
doubt
Board review of petition: IF DOESNT HAVE ONE OF THESE => Regional Direcotr will
NOT proceed w/election
Board jurisdiction (Commerce Clause, in an industry affecting commerce)
Unit is an appropriate bargaining unit
o There can be more than one appropriate bargaining unit
o To challenge unit determination (w/8a5) ER must show that unit is truly
inappropriate (Blue Man Group): no legitimate/rational basis for exclusion,
there are overwhelming similarities between the two units.
How rebut? Trident Seafoods ER showed functional integration
with unrebutted evidence and that the two units overlap entirely, can
be said to have zero community of interest separate from each other,
identical interests (re: hours, employment, benefits, supervision,
training).
o Community of interest: Bd. will consider from both the U and the ER
Unions community of interest: extent and types of current org (cannot
be the only factor though for determining BU), bargaining history,
similar duties, skills, function, training, benefits, employment Ks.
Employers community of interest: lines of supervision, EEs working
conditions, organizational lines.
o Who wants what generally
U wants: smaller BUs, be able to whipsaw (one manager, multiple
bargaining units, multiple strikes to cause more of a headache) - if ER
challenges and says no legitimate basis for exclusion, U will argue
differences between the BU and non-BU employees (ex . Blue Man
skills, training).
ER wants: bigger BUs, and to be in line with organizational
demarcations (so not whipsaw) ex. Blue Man, ER challenges
because said techiciains should be with everyone else; ER will
challenge to aruge wrongfully excluded, ER will highlight similarities
between BU and non-BU.

17
o High stakes: election unit, represents all (exclusive and majority rep), EEs
waive right to bargain individually with ER (ex. Emporium Capwell).
o Specialized rules: guards, professionals (w/nonprofessionals), acute healthcare
facilities, craft unions. [OL at 26]
o Multiple plants? Single unit presumptively appropriate
even where there was another plant 20 miles away and their operations
were integrated (Dixie Belle Mills)
goal of NLRA is to encourage collective bargaining, makes more
likely (pro-U policy).
o Other kinds of bargaining units
Multi- bargaining unit
Creation
o Mutual Consent all ERs have to agree, U has to agree
o Board must deem appropriate looks at past
negotiations of ER
Withdrawal -have negotiations begun?
o If negotiations have not begun => a single employer
can withdraw from multi-ER unit
o If have begun (including if at impase) => single
employer cannot withdraw from the multi-employer
bargaining unit, unless
Gets consent of all the parties, including all
other ERs and the union OR
Unusual circumstances financial hardship, or
U contracts with other ER
Impasse does NOT count (Bonnano)
o Union also has to follow these rules, also needs
consent or unusual circumstances in order to withdraw
Coalition Bargaining
Either side can choose its negotiation team as it sees fit
Other party will commit ULP for failure to bargain if does not
bargain because of this, unless the situation is so infected with
good will because of the additional person that GF bargaining
becomes impracticable.
Evidence of proper showing of interest thru cards (usually 30% of EEs in the
bargaining unit)
o Exception: 8(b)(7) expedited elections where the ER files an ULP complaint
under 8(b)(7)(C) then the ER can direct an expedited election
No commission of remedied ULPs blocking charge
o ULPs by ER
o ULPs by union
Proper Timing: Does NOT Violate
o Election Bar after an election, must wait another year before the Bd will
direct another election in the bargaining unit or any subdivision of the
bargaining unit (including if lost/if was decertification election).
o Recognition Bar where there was voluntary recognition => for a reasonable
period of time where the union has had a fair chance to succeed.
o Certification Bar- no prior certification within the preceding year
During the year: irrebuttable presumption of majority status (no
petitions) unless unusual circumstances Brooks. After 1st year,
rebuttable presumption of majority status.

18
o Contract Bar no existing CBA that would block the petition (irrebuttable
presumption for the three years of the contract). three years of labor peace.
Is there a CBA in place? If an old contract expires, and a new one is
not renegotiated, new U can file petition. But there is still presumption
of majority status after the CBA expires (Bartenders).
Is it within the first 3 years? only bars for the first three years, Shaw
Supermarkets. A contract that is longer than 3 years will still only bar
for 3 years. If new U comes in => 4th and 5th year provisions do not
apply, nullified. (American Seating Co)
Is the contract able to serve as bar? No illegal provisions? In writing,
by both the ER and the U? Applies to the employees who are
concerned in the petition? [OL at 25]

o The election itself
Voter Eligibility
Last payroll
Strikers/Replacements
o If youre an unfair labor practice striker, youre eligible to vote indefinitely
o If youre a non-replaced economic striker, youre eligible to vote indefinitely
o If youre a permanent-replaced economic striker, youre eligible to vote for 1
year after the strike began
o If youre a permanent replacement, you get to vote
o If youre a temporary replacement, you dont get to vote
o If youre on layoff, youre eligible to vote if it appears likely that you will be
recalled
Are these non-striking replacements? => Bd assumes they support the incumbent
union
Are these (voting, permanent) replacements => Bd does not presume anything about
their union views, meaning no anti-U presumption either
o Recognition if U presents the majority of cards, ER has no obligation to accept, ER can refuse to
bargain based on the cards, does NOT need to give affirmative reason, can say no comment.
Exception: If ER knows from a personal poll the majority of the EEs supported the union
Withdrawing Recognition from the Bargaining Unit
o CONSEQUENCES
If withdraws unlawfully => remedial bargaining order for the U, as part of that gets
reasonable period of time and rebuttable presumption of majority (U gets temp majority
status)
**If withdrawal is before, after, or during strike, and ER withdraws recognition, now is ULP
during strike, can convert strike to ULP strike, very expensive.
And if ER has changed benefits without bargaining about them can be ordered to restore
them.
o Three ways to withdraw
(1) Unilateral withdrawal, most risky (need objective evidence that U no longer has majority
support), Levitz; overruled Celaneste, objective GF basis no longer eough.
(2) Poll many requirements [if poll, then see that have objective not majority, withdraw?]
(3) RM election petition- needs GF reasonable doubt, and meet time requirements of a petition
otherwise
o Analysis
(1) Has the employer withdrawn recognition during one of the irrebuttable presumption of
majority status

19
If withdrawn during election year; recognition bar; certification year; contract bar
during the first 3 years of the contract => per se ULP, violates duty to bargain in good
faith.
o whether or not the EEs still support union (Brooks)
o whether or not the ER thinks there is majority support
o only for: dissolves and becomes defunct, almost all members transfer,
affiliation to new union)
(2) Is there a rebuttable presumption in place?
Continued majority status of the union after certification year expires
Continued majority status after expiration of CBA (Bartenders: ER withdrew after
CBA expired, this violated 8a5).
(3) Does ER have objective evidence that union has actually lost majority status support OR
does ER instead have doubt that there is a majority?
If ER has objective evidence that actually lost => can unilaterally withdraw (Levitz)
But if ER does NOT have objective evidence that actually lost => CANNOT
unilaterally withdraw, will be ULP
Instead, if ER has good faith doubt => ER must file RM petition for an election and
await the results of the election before withdrawing recognition. (Levitz: std is lower
than used ot be)

Duty to Bargain in Good Faith with the Exclusive Representative
Is anyone trying to go around the union as exclusive rep?
o Is this a mandatory subject or a permissive subject?
See above/see sheet
o If mandatory subject
No negotiation between ER and EE
Individual EE cannot negotiation directly with ER => can be discharged without
protection
ER cannot negotiate directly with employee => will be 8a5 violation, ULP
LIMIT: ER can explain to employees position on something without ULP (ex. what its
last best offer is).
Existing individual employment contracts are not a bar to CBA, CBA wipes these out to the
extent that they conflict (the individual employment Ks can still exist to the extent that they
are OTS of the CBA and not inconsistent). J.I. Case
No exception for issues that impact a minority of EEs more strongly Emporium Capwell
o If permissive subject
Individual EE can negotiate directly with ER to the extent that it is not inconsistent with the
current CBA.
Has the union waived the rights of its employees?
o Waiver of Title VII right to sue in court => legal, and can be enforced, Penn Plaza
o Class action waiver => legal, BUT Board has held it doesnt preempt NLRA, participation in class
can still be concerted activity
o Right to picket, right to strike, right to sympathy strike all can be waived
o Right to ULP strike not within the no strike clause in general, but can be waived if explicit.
o Individual section 7 rights of solicitation (Magnavox) => cannot be waived
o Right to refrain from wearing union insignia => cannot be waived
o Weingarten right can be waived

Duty to Bargain in Good Faith (5 ways ER can violate: bouwlerism, unilateral on a mandatory, surface, not
furnish info, regressive)
o Def: 8(d) - both the union and the employer have an obligation to:

20
(1) Bargain in good faith about the wages, terms, and conditions of employment
(2) Meet at regular times
(3) Come with an honest effort to reach an agreement
o ***Significance of Duty to Bargain in Good Faith
If does not bargain in good faith => union can file 8(a)(5) labor practice
Employees can go on strike for their bargaining demands AND for the ULP
If union succeeds with ULP charge, employer will owe: (1) backpay -but with DTM, (2)
reinstatement of employees, (3) on top of ERs loss of work time, interruption.
o (1) Is there a duty to bargain in good faith over this topic?
Rule: NLRB requires the employer and union to bargain collectively over any mandatory
subject. 8(d). Unilateral activity by ER on a mandatory subject unless the union has waived
the right to bargain over the subject.
Significance of whether mandatory vs. permissive subject

Issue If subject is mandatory If subject is permissive
Duty to bargain in
negotiations and duty to
furnish information
Must bargain about the
subject if party raises it.

If potetnailly relevant,
must furnish info about the
mandatory subject must be
disclosed
Do NOT need to bargain about
subject if party raises it were
not talking about that right now
is NOT a ULP.
Must attach it to something they
want.
Unilateral Actions



And because DTB
Employer cannot take
unilateral actions unless:
-Management rights clause
-Bargained-for subject in
existing CBA
-At impasse, implementing
LBO.
And because no DTB
Employer can take unilateral
actions on permissive subjects
Individual negotiations
between employer and
employees
Cannot, the union is the
exclusive bargaining rep on
WTCE. 9(a).
Can to the extent no conflict.
Ability to bargain until
impasse.
and because must bargain
about it, can bargain until
impasse.
and because do NOT need to
bargain about it, can NOT bargain
until impasse
Economic Strike At impasse, YES They cannot reach impasse,
therefore NO economic strike
Employer Lockout At impasse, YES They cannot reach impasse,
therefore NO employer lockouts.

(a) Still within timeframe that there would be a duty to bargain for the parties?
Bargaining before execution yes, King Size Sandwiches
After impasse, when negotiation
o Impasse means you can't agree and negotiations have come to a complete halt.
BUT, if one or both parties change their minds about something, then they
have a duty to return to good faith bargaining.
o Therefore, if at impasse => no bargaining, unless one or both parties change
their positions on a mandatory subject.
Once reach agreement, during the term of an agreement, on new subjects and duty to
disclose - Acme

21
When the employees are on strike if the parties change their position about something
After the contract has ended
o Sometimes dont have to arbitrate the grievance
o But DO have to bargainin good faith
Successorship: when 51% of ER2s employees are from the old ER, bargaining
demand, continuity of employment (see later).
(b) Is this a mandatory or permissive or illegal subject?
Does this affect the wages, hours, or other terms and conditions of employment of
the bargaining unit employees?
Is this a management decision (matter of mgmt. pereogoative- will be permissive) OR
is this the effect of a mgmt. decision (will impact the wages, terms, conditions,
employment of EEs will be mandatory).
Particular subjects
o Retiree benefits Pittsburgh Plate Glass => can apply vitally affects test
Having retiree benefits, for the current EEs, is a mandatory subject
affects their wages, is a condition of employment, term
But the manner in which retiree benefits for current retirees are paid
out by ER does not vitally affect the terms and conditions for active
EEs.
o Bargaining unit work for supervisors is mandatory
o WARN act if closing plant with 50+ EEs
o Decision to sell business similar to decision to close business (and if partial
closing: bargain over effect not decision).
**Bargain over effects: pensions, severance pay what impact will the
closure have on the EEs
If want there to be a duty to bargain
o Will argue it affects wages, money, money can be described more loosely,
Oliver minimum rentals, cafeteria food, babysitting on site, pattern could
come to be thought of as a wage (turkey money every year).
If pattern => how long-standing is the pattern?
Is it related to productivity? (~wages)
Is it a fixed sum in case over a long period of time? (~wages)
o Will argue this is linked to working conditions, or other conditions of
employment => something the EEs came to expect as part of their job -
compare to vending machines (Ford) (ford factors).
If dont want there to be a duty to bargain
o Will argue this is a GIFT, ex. Christmas turkeys from class, therefore it is a
permissive subject, not related to productivity, not wages.
o Will argue this is not about current BU employees ex. Pittsburgh Plate
Glass.
(c) If this is a midterm negotiation => has the union previously waived its right to bargain
over this topic? (see below) Zipper, Mgmt rights clause, Conduct in negotiations
Bd. requires the employer and the union to bargain collectively over any mandatory
subject, and unilateral action by the employer would a ULP unless the union
waived the right to bargain over this. Then failure to bargain with union over this
and taking a unilateral actionis NOT violation of DTB.
If mandatory subject must bargain in good faith until impasse
If permissive subject of bargaining: there is no duty to bargain in good faith over a permissive
subject of bargaining. in order to bargain about it, they both have to elect to do so.
Cannot bargain to impasse, cannot take CA over
ER can take unilateral actions over permissive subject

22
ER can negotiate directly with EEs over permissive subjects
o (2) Conduct: did the parties bargain in good faith?
Parties are obligated to confer in good faith with respect to wages, hours, and other terms or
conditions of employment (8(d))
(A) Did the party implement a unilateral action on a mandatory subject before impasse was
reached? Katz (366) held: this frustrates objectives as much as a flat refusal
Impasse = point after long bargaining when no agreement is reached & parties do not
want to make any changes.
o Determining impasse requires a case by case, totality of the circumstances
(including history of relationship b/t parties, record of what has been said at
the table via parties notes, importance of the issue)
Might be that the parties disagree both file different ULPs
In this case => NLRB will look at understanding of both parties and
history of negotiations.
o Impasse must be about the entire negotiations, not one issueDuffy Tool &
Stamping. ( ER has very limited ability to make changes is really limited if
negotiations go on for years and ER must maintain the status quo),
o Once impasse is reached, the duty to bargain in good faith ends
o BUTimpasse is a temporary condition that ends once a party decides that
they will change.
Only at impasse can the ER implement last, best, final offer (and take this unilateral
action)
o Katz: parties had NOT yet reached impasse, and ER unilaterally implemented
sick leave policy the use of economic power by granting wage increase and
changing the sick-leave plan = flat refusal to bargain about those issues (i.e.
terms and conditions of employment), this is not a form of economic power
allowed by NLRA, parties have to bargain about those issues.
o POL: unilateral action plainly frustrates the statutory objective of eastablishing
working conditions through bargaining.
Even though here, the ER gave a wage increase and said he was doing
it in good faith, because have the U in place, have to bargain=> some
might want it, some might not.
o AND the union could still require that the ER not take unilateral action on
something that had done previously merit increases in Katz.
Implementing a change that is better than what was bargained for (after ER has
implemented last best offer) is inconsistent with a sincere desire to reach an agreement
(Pacific Gamble)
Arguments for each: when there is an allegation that party unilaterally implemented
o Unions arguments
1) The change was about a mandatory subject and therefore could not
put in unilateral change other than the last best offer at impasse
not a gift
compare with others
therefore you should have bargained over this under KATZ.
2) Impasse issue
did not reach impasse ex. if implemented a change that was
better than bargained for, Pacific Gamble
did not reach impasse, in general, facts and circumstnaces
o Employers arguments
1) This was in our discretion
If existing CBA => point to mgmt. rights clause

23
If new topic, argue that it was totally discretionary, therefore
could do what wanted and was not unilateral in violation of
DTB, ex. merit wage increases
2) This was a legitimate economic weapon under American Ship and
Insurance Agents.
Er would cite to Insurance Agents - there are limits on the
Board's power to sit in judgment upon every economic
weapon the parties to a labor contract negotiation employ.
o The Board would agree with the Union => If discretionary increases
based on are a mandatory subject of bargaining because they were decided
based on a fixed rubric of employees standard performance throughout the
year, and amount to wagesnot gifts, then unilaterally discontinuing the
merit increase would be unlawful.; and merit pay is a mandatory subject,
McClatchy.
For this reason, ERs last, best, final offer cannot give employer unlimited control, the
LBO cannot be a discretionary wage increase, because this will undermine the
purposes of collective bargaining. McClatchy Newspapers (370).
(B) Flat refusal to bargain?
(C) Refusal to meet and confer at reasonable times?
(D) Insisting to impasse on a permissive subject of bargaining?
Both sides argue whether subject is mandatory or permissive
If mandatory => would have been ULP not to bargain to impasse on this
If permissive => will be ULP to bargain on impasse on this
(E) Not furnishing information in line with duty to furnish information? Truitt
An employer is obligated upon request to furnish the union with information that is
potentially relevant and that would be useful to the union in statutory
responsibilities. (Truitt)
o Truitt=company said in bargaining that 10 cent raise would break the
company, U asked to see the financial information
o Unions also have duty to provide information
Important as part of evaluating a party's claims made during negotiations. NLRB v.
Truitt Manufacturing
Defense: Interest in Employee Privacy - Detroit Edison Co.: standardized tests that
revealed personal information.
Continues throughout the term of the CBA ex. Acme.
Role of Economic Weapons in bargaining
o Engaging that something trying to get the other party to meet demands during duty to bargain? => on
the job protests do not violate DTB even when they exert pressure while people getting paid and are
unprotected
Proponent will argue it is ECONOMIC WEAPON within the American Insurance meaning,
it is unprotected but it is not an ULP, it is not a violation of the duty to bargain in GF.
Conduct in the workplace slowdown
Sit-ins
Not attending business meetings - these were all things that were economic weapons
but did not violate duty to bargain they were economic pressure but they were not
bargaining in bad faith.
Strike does not violate duty to bargain in good faith American Insurance
o there are limits on the Board's power to sit in judgment upon every economic weapon the parties to a
labor contract negotiation employ.
o Board can only order parties to bargain, not which economic weapons to use (unless secondary)
Did the Board exceed limits on its power?

24
o Board cannot order substantive specific clauses
o Even when would end the dispute, when entire dispute is about one clause, still cant Cummer-
Graham (arbitration clause refused when had no-strike clause), H.K. Porter (check-off clause dispute).
o Board cannot order wage increases
o Board cant order make-whole remedies if there is a challenge to certification (Ex-Cell-o)
o But can order reinstatement, backpay, access, notices (see above)

Employee Collective Action: but apply this analysis throughout (concerted? for mutual aid + pr? protected?)
Employee collective action reflects a balance employees right to engage in concerted action vs. employers
right to maintain order and control in the plant. This balance is reflected in separating protected from
not protected activity under 7

If activity is protected by 7 (concerted, MAP, +
protected)
If activity is NOT protected by 7
Employer CANNOT fire employee for involvement in
the activity, and it will be 8(a)(3) and 8(a)(1) UNFAIR
LABOR PRACTICE for employer to take action
against employee (benefits, firing) for involvement in this
activity.
Employer CAN fire employee for involvement in the
activity, because of the activity.
Employee can be reinstated with backpay (subject to
DTM) if Board finds that ER acted in retaliation to EEs
participation in protected activity.
Employee will have no recourse in challenging the
employers decision to fire; ER can fire an employee for
any reason at all, as long as it isnt because of section 7
activity, and here it isnt.

**Section 7 protects both unionized and non-unionized employees, if the employees actions were
concerted and for mutual aid and protection and not unprotected means (ex. disloyal, violent).
(1) Concerted?
o One or more people engaging in activity together for the purpose of mutual aid or protection?
Washington Aluminim, Jasper (can be only 2).
o If non-unionized: acting as spokesperson, even if not two people? or acting as constructive
spokesperson, talking to ER about a bad lighting for everyone? => concerted IF the activity of the
single employee is concretely linked to the other employees. Complaining about machine and no one
else felt that way => not concerted. No griping.
o If unionized: Interboro Doctrine.
If an employee asserts a right that is
(1) reasonably directed to a right in the collective bargaining agreement, and
(2) the statement or action is based on a reasonable and honest belief of the EE that
he is being asked to perform a task not required to be performed according to the
CBA, or that conflicts with the CBA
o but the EE can be wrong as long as its reasonable and honest
.then the action is concerted activity, even though the EE is alone when he does his action.
If want Interboro Doctrine to apply => compare to City Disposal
CBA had provision about driving safe trucks, he refused to drive truck b/c didnt think
it was safe, this went to the rights of all employees, because all the EEs were covered
also by the CBA provision, he was enforcing everyones right not to drive unsafe
trucks
If dont want Interboro Doctrine to apply => argue that the EE is only standing up for his own
benefit. Ex. EE arguing mourning policy when he alone had strange calamity and it is unfair
as applied to him.
(2) For Mutual Aid and Protection

25
o Is the EE advancing a cause within the employment relationship? Look at the EEs/EEs ends : what
is the action direct toward?
If contract provision yes, for collective bargaining or other mutual aid and protection
Third parties NOT within employment relationship
Orchard Park the patients, whether the patients were too hot in the nursing home
ward X for MAP
Five Star the kids safety
But employee causes more broadly are within the employment relationship (general
employment relationship Eastex)
o If unionized employee => Weingarten Interview IS for mutual aid and protection
Employee must reasonably fear that discipline against them will be expected to follow
dont get a union steward with you for (1) conversational interview, or (2) meeting
about a decision already arrived at, not just if mtg to communicate a decision already
made
EE must request representation (and dont get Miranda rt to be told)
Must have union in place, IBM
Dont get to choose favorite, dont get to have person with them if interview is to happen
immediately (EE gets to have confidential mtg with steward before going into interview),
**ER may not limit the role of the steward to silent observer. and the U rep cant be
disciplined for accompanying the EE to the interview (Intl Ladies Garment)
BUT ER can: (in addition to granting the request)
No longer have the employee disciplinary interview, and offer the EE a choice
between:
o NO interview at all OR
o Continue the interview without having a union rep with them, waive it there
Therefore, ER can dilute this very muchand ER would argue this if challenged on
Weingarten grounds
Theory behind ERs escape clause => nothing that say EE has to have the interview,
only caselaw that the EE has to have a rep if has the interview.
(3) Protected? ** the means of how the unions or the employees action is done
o Even if concerted, even if for mutual aid and protection/the employment relationship, if an
unprotected means, it will be outside the scope of 7.
Unprotected Means
o Indefensible, reprehensible? (Aroostok)
o Violent?
o Uncommon risk of injury or property damage?
o Disloyal?
Product disparagement? (Jefferson Standard)
Includes boycotts (also secondary)
Can breach as an EE or prospective EE Five Star
Breach of confidential information? (ex. trade secrets)
False allegations or affadavits concerning the ER that are deliberate or malicious
o Sitdown, slowdown, any concerted action during work time?
other than a sympathy strike, which IS protected
o Against sprit of NLRA? trying to get someone fired for being dissident, goal = against other laws
o **Over a supervisor when the supervisor would not have been protected for this act
Protected IF supervisor is protesting ULP
NOT protected if super is just fired for managerial decision, or other supervisor discipline
o During cooling off period?
If strike during cooling off period and economic strike => unprotected
But if strike during cooling off period and ULP strike => still protected, Maestro

26
o Secondary?
o Signalling?
o To obtain Hot Cargo Clause?
o To enforce Hot Cargo Clause?
Special Protected Means to Note
o Safety-related protest (protected if have good reason)
o Refusals to cross picket lines
Picket line at employees own company
If a primary picket and refuses to cross => concerted and protected
If a secondary picket line at EEs own company and refuses to cross => now EE is
participating in the illegal means of the pickets (by aligning w/the pickets, is now
also unprotected and subject to discharge for actions)
If at another company when EE is making deliveries, or when EEs are receiving orders (hypo)
=> concerted and protected
If someone stops work for refusal to cross picket line, ER can hire temporary replacement for
that employee/those employees s

Strikes and Lockouts
Strikes
o Section 7 protects concerted activity, and this includes the right to peaceful work stoppage
(peaceful strike). But Congress has also expressed desire to settle agreements at bargaining table
without recourse to economic weapons pro-arbitration policy, and arbitration now => no strike.
o Note: High stakes for both
if unions strike is unprotected => can be fired for being involved in the strike capital
punishment
if ERs lockout is ULP or other response method is discrimination against strikes => once find
ULP, strike is converted to ULP strike, ER has to pay reinstatement/backpay subject to
DTM, but still expensive.
o Does this meet the checks for a protected strike?
Doesnt implicate any of the unprotected activities?
Not during cooling off period?
Reached impase?? MUST HAVE REACHED TOTAL IMPASSE
Striking about mandatory subject?
Lack of No-Strike Clause?
Lack of Arbitration Clause?
A => NS; if they are striking in the face of arbitration clause, also unprotected
o
Employers Response
o Does the employers response to a strike have the possibility to convert this into a ULP strike?
(1) Has there been a ULP by ER after strike?
Evaulate using 8a3 if related to hiring/firing: Great Dane Test
o Comparatively slight=> need to establish ERs anti-union motive, ER has
opportunity to refuse with business reasons.
o Inherently destructive 8a3 violation without motive
But not all action will be ULP Christmas bonuses wasnt, was based on productivity,
was comparatively slight
Discharging strikers -8a3, because of protected (Laidlaw)
I nducements for striking EEs to retun to work (strikebreaking thru inducing)
Belknap, Erie Resistor
Employer action related to payment /withholding of benfits Great Dane vacation
pay

27
Partial lockout - IBEW 15
(2) Would it be a ULP strike by subjective/objective factors of the Board?
Board will evaluate strike as ULP based on subjective factors whether the EEs think
it is, posters, flyers-and objective factors (bargaining dispute btw parties, timing).
o Employers permitted options at impasse
Implement last, best final offer an ER may implement his final offer, provided other
negotiations not taking place.
Lockout employees
Must be at impasse lockout becomes ULP where employer is locking EEs out to
avoid bargaining in good faith
Offensive at impasse, before strike (American Ship)
o Lockout Requirements:
(1) ER cant use lockout as a means to injure a labor organization
(2) ER cant use to evade his duty to bargain collectively, in GF with
union
(3) Anti-union animus: will be subject to 8a3 motive test
ER must argue: business justification, needed to lock out
EEs to exert economic weapon, ex. because there would be
upcoming busy season when could not have strike (American
Ship)
(4) Must maintain GF bargaining duties during lockout although at
impasse, if one party changes position.
But, ER is allowed to use economic weapons, Boardsr role is not to
function as the arbiter of economic weapons (Ship)
Defensive at impasse, after strike
o Could be at one in a multi-ER union (Buffalo Linen)
Partial lockout bad idea, very likely 8a3 charge
o Local IBEW 15 locked out the EEs after strike, 8a3 charge, it was because
anti-union animus
o Great Dane test
o Rule: To justify a partial lockout on the basis of operational need, an ER must
provide a reasonable basis for finding some of the employees necessary to
conintue operations and others necessary (and cant be past strike conduct).
Lockout employees plus hire temporary replacements during lockout
Hire replacement workers
If economic strike: hire permanent replacement workers but, if hasnt bargained in
GF or engages in other ULP, could be substantial liability.
If ULP strike: only can hire temporary replacement workers, not as strong a tool
against the union.
Replacement Worker Rules - MacKay
o Cant discharge the strikers
o Can perm replace economic strikers
o Discharged strikers remain employees, preferential reinstatement, must
reinstat when vacancies arise, unless striker has obtained substantially similar
employment elsewhere.
If ER does not extend vacancies to them => must show would have
refused reinstatement based on skill or ability and not because of
participation in strike
o Notification must notify strikers who want to return to work (have made
unconditional offer to return to work) of vacancies
o But ER doesnt have to bump more junior EEs Transworld

28
o Cant treat union officials more harshly than other EEs if there is a violation of
no-strike clause Metropolitan Edison b/c would discourage being U officer
Other options
Continue operations with only supervisors or other BU employees who are willing to
cross picket line
Try to invite strikers to work but cannot induce them to come back with raises,
etc.
o Employers actions can be 8a1 or 8a3 violations in response to strike
o Employers Remedies if there is a strike
If no no-strike clause or arbitration clause
Temporary Replacements
Perm Replacemetns
Lockout (offensive, defensive)
If there was a no-strike clause or arbitration clause
**Boys Market Injunction
o Judicial enforcement of no-strike clause
o ER will file 301 for breach of contract (the no-strike clause)
o Requirements
o Not extending to Buffalo Forge
Right to damages from unauthorized strikes
o 301 authorizes damage suits for unions for breach of contract
o Wildcat strike liability
If was only no-strike clause, ER could file for breach w/301

[just pure checklist after this point refer to outline p. 45 75]
Picketing
o Section 7 protects concerted activity, and this includes the right to picket.
o Mention constitutional location picketing is distinguished from speech because coercive;
picketing on behalf of an unlawful objective is not constitutionally protected, even if it is in a peaceful
manner (Vogt because it was similar to secondary boycott, state could enjoin).
Hudgens: the first Amendment is not a bar to criminal trespass of picketers, nor of arrest (for
criminal trespass) of picketing.
o Recognition or Organizational picketing
(1) Is this picketing?
Confrontational aspect?
Picketing is distinguished from other forms of speech by its coercive/intimating
element (Carpenters Union)
(2) If this is picketing, is it for recognition/organization?
If no => Go to #3
If yes => Subject to Recognition Picketing Rules
o UNLESS: information picketing is also a goal Crown Cafeteria Proviso
allowed even though a goal is recognition
Recognition/Organization Picketing Rules
o If any of these bars, the picketing will be a per se 8(b)(7)(C) violation if the
ER files a ULP charge. (if it is impossible to file a petition w/in 30 days =>
ULP)
Contract Bar -- no recognition picketing during CBA bar
Certification Bar no recognition picketing during certification yr
Election Bar no recognition picketing within a year of an election
Recognition Bar where the employer has lawfully recognized in
accordance with this Act any other labor organization

29
o In excess of reasonable time, usually 30 days, without filing of a certification
petition
30 day requirement still applies if recognition + ULP
30 day requirement does not apply if informational picketing; and can
recognitional + informational goal
(3) Even if this is picketing, does it instead have information or area standards as (one of) its
goals? => falls within publicity proviso
o doesnt have to follow 30 day bar
o can picket in excess of 30 days w/o election petition
Informational Purpose = truthfully inform the public about ER not being unionized
Area standards Truthfully inform the public that ER doesnt meet area standards
But
(4) Is it actually signal picketing?
Activity that is short of picketing or is picketing through which a unio signals to
another group of employees or union members that hey should pressure on the
picketed employer. This in turn puts pressure on the employer of those employees
making this a form of secondary pressure. ILLEGAL.
Ex. picketing that halts pickups or deliveries by independent trucking companies
Purpose = to signal, or to discourage members of other unions from performing work
for the benefit of the picketed ER
Electrical Workers
o In response to 8(b)(7) recognitional picketing charge (ex. if in excess of the time requirements), union
will argue:
This wasnt picketing, this was handbilling
8(b)(7) doesnt come into play
May be protected as speech DeBartolo
This was not recognition, it was information/area standards=> publicity proviso
This was not signaling, it was information/area standards only => publicity provison
This wasnt recognition picketing, was solely about ULPs of the employer
Secondary Boycotts
o Is this activity the application of economic pressure upon a person with whom the union has no
dispute regarding its own terms of employment, in order to induce that person to cease doing business
with another employer, with whom the union does have such a dispute?
Who does the union have the beef with?
Who is the union putting pressure on? in order to get the primary to do what they
want, they are putting pressure on someone else: picketing them, hurting them
If the union is putting pressure on the secondarys employees, or on the secondary
employer by pressuring its customers, this will be a secondary.
NOTE: the beef is always with the primary
o If its primary strike, the answer to these questions will be the same:
Company A; Company A.
o If its secondary, they will be different Soviet Union for invasion; ship
company
o But NOT secondary: Incidents of lawful picketing sympathy strike (other
peoples refusal to cross picket line, other delays from primary strike). Intl
Rice Milling.
Exceptions to secondary boycotts
Individuals are allowed to refuse to cross a picket line is incidential to primary,
not secondary
Publicity, other than picketing, to advise the public the products of the primary
employer are being distributed by another employer handbilling, ex. DeBartolo

30
Tree Fruits ExceptionSingle Product Picketing is OKAY (establishing the
legality of picketing a struck product at a secondary employer, where the struck
product is one of many products sold by the secondary employer)
o Policy: freedom of K, dont want neutral bodies involved
o Consequences if action is a secondary boycott
Board can issue cease and desist order
Even before hearing on the merits, RD is to secure an injunction in district court against
probable violations pursuant to 10(l0
303 tort compensatory damages for secondary pressure like lost business because of the
pickets
ER can fire the employees because of the activity not protected
o To Consider In Secondary Boycott Problem
A. Picketing vs. Handbilling
Step 1: Is this picketing or handbilling?
o Handbilling does not threaten, coerce, or restrain, ay person to cease doing
business with another within the meaning of 8(b)((4)(B). DeBartolo.
Therefore, if the activity is only bannering (RA Sushi) or handbilling or
pamphlets, U has good arugment that it is not unlawful secondary pressure
o DeBartolo: HANDBILLING => NOT SECONDARY BOYCOTT
Peaceful pamphlets to customers
about the fact that ER fell below area standards
resembles speech, consider w/free speech protections
o Carpenters Union: BANNERS PEACEFULLY ON STREET => NOT
SECONDARY BOYCOTT
Stationary vs. walking back and forth
Not shouting; require more than mere persuasion after DeBartolo
Picketing does not suggest that Congress understood the term to
encompass the mere display of a stationary banner directed to
street, did not create confrontation
Step 2: If this is handbilling, or bannering, activity that is short of coercive, is it
unlawful secondary pressure through signal picketing?
o Activity that is picketing or is SHORT OF true picketing through which a
union signals to another group of employees and union members that they
should put pressure on their employer (a secondary employer), so that the
secondary employer will put pressure on the unions employer. A form of
secondary pressure.
Exmaple: Picketing that halts pickups or deliveries by independent
trucking companies or rendition of services by the EEs of other ERs in
order to send a signal to the employees of other unions.
activity short of a true picket line is secondary pressure if it is
signaling to start the secondary pressure by other unions this is why
must raise issue on the bannering/handbilling cases
o Giving signals to other EEs and union members to put pressure on a secondary
ER
o Purpose: Discourage members of other unions from performing work for the
benefit of the picketed employer. Try to get other unions to get involved in
your labor dispute. To have the other unions take note, and have their own
secondary action (where they arent doing work for your employer, even
though thats outside of their labor dispute). Signal picketing is proscribed
because it means you are getting others involved in your labor dispute.
o If INFORMATION => and only BANNERS => will be short of coercion
(step 1) and short of signaling (step 2).

31
B. Ambulatory Situs
Is anyone moving here? - aka: a mobile employer (i.e. truck, ship), when the situs of
the dispute is not limited a fixed location, but is instead ambulatory (Moore Dry
Dock).
Rule: A Union engaged in a lawful primary strike is entitled to picket the Employer
not only at its principal place of business but also wherever else the Employer carries
on its business. (Moore) - Union may lawfully follow the trucks and the drivers and
picket the trucks and employees as they go about their business.
Apply Moore Dry Dock
o (1) Picketing strictly limited to times when the situs of dispute is located on
secondary employers premises must actually follow the ambulatory situs, and
only be there when the primary situs (boat, car, truck) is actually at the situs
o (2) At time of picketing primary employer is engaged in its normal business at
the situs
o (3) Picketing is limited to places reasonably close to the location of the situs
Also cannot be directed at a customer of the secondary employer. It is
illegal for the Union to try to involve the customer in its dispute with
the Primary Employer.
Pickets (who are supposed to be there attacking the primary) should
not talk to the customers of the secondary.
o (4) Picketing discloses clearly that the dispute is with the primary employee
If the truck driver works for primary employer, union can ask the driver not to drive
the truck
The secondary employer cannot fire its employees who honor the strike by refusing
the unload the truck from the primary employer (refusal to unload that particular truck
is protected activity/cross picket line).
Driver, as a primary employee, is a protected striker if he decides to honor the picket
Union will argue: we were doing primary (when they were really doing secondary,
stretching how close they were to the truck, putting pressure on the secondary to put
pressure on the primary.
C. Common Situs Moore Dry Dock
Rules - in a situation with a common situs, picketing on the premises of the secondary
employer is primary/lawful if it meets the following conditions
o (1) Picketing strictly limited to times when the situs of dispute is located on
secondary employers premises
o (2) At time of picketing primary employer is engaged in its normal business at
the situs
o (3) Picketing is limited to places reasonably close to the location of the situs
o (4) Picketing discloses clearly that the dispute is with the primary employee
ER will argue that this is secondary, and will take measures to reduce possibilities for
common situs by separating in time or in shifts. This is effective argument because
MDD rules requires that the pressure on the primary Er at the shared situs be at a time
when normal business is occurring.
This makes conduct that would otherwise look secondary to be primary U will argue
that what it is doing is primary when it is really secondary.
o but it means the union can try to get the most out of MDD so if still wants to
get some secondary pressure, can aruge that its still within common situs
o this is why separate gates doctrine developed
Limit:If the boat docks only briefly if a shipyard permits a vessel to use its dock
briefly, not permitting that union can picket by MDD Rules (stated in the opinion).
D. Ally Doctrine

32
TEST: If a third party does work, which, but for the strike, would have been the work
of the primary employers employees (the primary ERs employees) THEN THE
PICKETING IS PERMITTED
Requirements (had all in Douds): The secondarys employees are doing work which,
but for the labor dispute, would be done by the striking employees; the primary ER is
paying for this work; and there is a contract or agreement btw the struck employer
(primary ER) and secondary ER to have the secondary party do the work.
Limits: If secondary employer stops doing Primary ERs work, they regain their
secondary status. (at that point, union must stop all actions against them or suffer an
8(b)(4) violation.)
D. Reserved Gate
Reserved gate is attempt by an ER to isolate the employees and the employer involved
in the dispute from other Ers at the single location.
Requirements (General Electric)
o (1) is there a separate gate, marked and set apart fro the other gates?
If yes => union not able to picket (if meets other two)
If no => mixed use => EEs can picket here, can have MDD (i.e.
some are doing maintenance work and some are doing new
construction looked like that in General Electric)
In General Electric, ER gets sloppy lets some of the EEs from the
secondary go into the primary gate. IF ER allows mixed use of the
gate, then it will become common situs between the gate, and the
primary EEs can picket the secondary.
o (2) is the work of the people that ER is trying to separate related to the
If the work is related => WILL NOT have created a separate gate =>
U can picket the gate (can appeal to secondary EEs)
If independent contractor work is unrelated => SEPARATE GATE
will WORK => U cannot picket the gate (must meet Moore Dry Dock
standards for the rest of the plant, and the gate will not be their
primary)
For this reason - construction contractors = unrelated (like
in General Electric)
o (3) If this work were done during a time when normal operations were
occurring, would it mean they have to shut the plant/operation down?
If yes => the union can picket. Dont want to have separate gate so that
ER could have it for something that he would have had to cease
operating to do (i.e. replacing equipment).
If no => support the employer having the separate gate
E. Consumer Picketing secondary boycott publicity proviso
(1) Handbills vs. Picketing
o Handbills: Can call for the boycott of the secondary store, ex. RA Sushi or
DeBartolo will not be unlawful secondary action-- Servette:
o Picketing: OK to PICKET if only protesting the single product. Not to
boycott Safeway altogethercalled struck product picketing.
(2) Consumer Appeals
o Single product picketing is permissible
not at the secondary employer generally, not asking customers to
withhold patronage from the secondary employer in total, only at their
struck product in the store. Rather, they were only asking customers to
boycott the primary employers goods, and in an environment when
this was possible.

33
o Substantial Loss Likely Test for if Major Portion or Major Product
But will coerce the secondary employerand therefore be
impermissible secondary boycottif the action is reasonably likely
to threaten the neutral employer with ruin or substantial loss (Safeco
footnote).
o And if the product is the major product, like it Safeco, the picketing //
consumer appeals would rise to the level of threatening, straining, coercive,
which exert illegal secondary pressure on the employer, as distinct from a
single product in grocery store.
o Or, if merges into everything Kroger
it wasnt possible for the customers in that case to separate out what
was primary product (the bags) from what was not, because the bags
were what they used for everything. This became into situation where
the one product seeped into everything; could not be separated.
Hot Cargo Clauses
o Definition: an agreement between an employer and a union where the employer voluntarily agrees to
stop doing business with another.
o Two things are illegal:
(1) ER and U cannot agree that ER will not deal with someone, AND
(2) U cant strike, coerce, etc. to obtain or enforce a hot cargo agreement, either. NO
CONCERTED ACTIVITY FOR THE UNLAWFUL GOAL. A strike to obtain a hot cargo
provision is an unfair labor practice
o Why dont allow: subjecting the employer of the Teamsters to the secondary pressures by the union
that Congress has found dangerous; the employer is now hurt by the labor dispute of another (because
Teamsters Employers employees arent handling certain products).
o Hot Cargo Clause vs. Work Presevation Clause
ISSUE: Union standards (legal) VS. Hot Cargo (illegal) vs. Work Preservation (legal) vs.
Work Acquisition (illegal)
(1) Is the clause limited to concerns over protecting work at the contracting employer,
for work that has been traditionally done by the BU employees?
Aimed only at internal objectives, not external (shield vs. sword Woodworkers)
AND Was the work traditionally performed by union members?
o Meat Highway includes work recapture into work preservation -- jobs
that the bargaining unit traditionally had, as distinct from unlawful work
acquisition ex. when the business had lost jobs recently in Meat Highway.
Technological changes (ex. doors)
Methods of distrubtion are changed
But, work must be fairly claimable
(2) Does the employer have the right to control such work?
If work preservation => cannot enforce by illegal means
Although it was a lawful work preservation clause, the refusal to do the work was still
secondary pressure because their employer didnt have the power to distribute the
work
Special Rules and Exemptions: Construction and Garment
Construction Industry Garment Industry
Contents of
the Hot Cargo
Clause
Can only apply to things made or
work done on the job site.
Can have any contents
-Er cant contract with
nonunion companies
(beef w/the nonunion)
Getting the
Hot Cargo
Can strike to get it - no NLRA
violation
Can strike to get it - no
NLRA violation

34
Clause
Enforcement CANNOT strike to enforcenot
protected under NLRA but can
enforce as a breach of contract.
Can strike to enforce it
this is protected (ex. can
take action to enforce the
hot cargo clause)

Reason: Union does not like to work alongside non-union at a construction site
Union can strike to obtain without violating 8(b)(4)(A), but a strike to enforce violates
8(b)(4)(b)
Damage suit to enforce is allowed
Applies to things made or work done AT THE SITE ONLY.
Strike to obtain a hot cargo clause relating to work done elsewhere is not lawful
(because the hot cargo agreement isnt within the exception).
If the materials were manufactured elsewhere, they are not covered by the proviso
The employer is still allowed to refrain from accepting jobsite materials made
elsewhere by a nonunion company
Why cant the construction union enforce the hot cargo agreement? Strikes to enforce a hot
cargo agreement would o sever the business relationships between the employer and the other
party when already started are banned.
Connell Construction Co. (SC 654): Stranger to the contract
Woelke & Romero Framing having the agreement (agreement that construction ER will not
subcontract to non-union EEs) in CBA is fine
Featherbedding
o OK: Employment of unnecessary number of workers, all of whom perform somework, unions
remain free to seek make-work devise and oppose labor-saving machinery.
o NOT OK: payment and compensation of stand-bys.
o If strike for featherbedding goal => ULP
o But, like in Gamble, very narrow reading of the featherbedding restriction.
musicians were on standby for traveling show, they were not really needed. But the standby
musicians were held to be okay because they did some work proposals were offered in
good faith of substantial performance by the musicians was ok
Work-Assignment Disputes
o Is there concerted activity over work assignments?
If the union strikes, threatens to strike with the object of forcing the employer to assign work
to that bargaining unit over another group (another union, OR a non-unionized group) => the
strike is unprotected. (has secondary boycott rationale if beef with other union)
o (2) was there 8(b)(4)(D) charge?
If a U strikes or threatens to strike to obtain work, ER or competing union can file an
8(b)(4)(D) charge not until this strike or threat to strike happens
Hearing will not proceed at all if within 10 day of receiving notice of the filing of the Section
8(b)(4)(D) charge the parties
If they havent resolved within 10 days, Regional Director can then seek a federal court
injunction under 10(l) if there is rsbl cause to believe that a violation of 8(b)(4)(D) has
occurred.
At the 10(k) hearing: Regional Office conducts
Board must make a decision (Radio and Television Union). Employer has to show up,
in addition to the two competing unions.
Upon compliance by the parties to the dispute with the decision of the Board or upon such
voluntary adjustment of the dispute, such charge shall be dismissed.
Administration of the CBA Issues:
Is there a CBA in place?

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If there is a CBA, it is likely that the ULP is also a CBA violation: NLRB deferral on ULPs
o Background: Bd has jxn to resolve ULPs in whatever context they arise, but if arise where contractual
grievance/arbitration machinery in place, the Bd has deferment/deferral standard
Pre-award deferral: Dubo, Collyer, United Technologies
Post-award deferral: Olin (*also: if there is an existing grievance settlement agreement, will
defer similarly)
If there is there a CBA in place, can the party is bringing a 301 claim to enforce the contract in court?
o 301 rules
Court can compel specific order to arbitrate (Lincoln Mills) and base on federal common
law
State courts also have jxn, but federal law applies (Lucas Flour)
o Pre-award deferral by courts:
RULE: If the collective bargaining agreement contains a mandatory arbitration provision, no
indepndnet court action can be maintained for a case alleging breach of CBA without first
going through the arbitration process, unless there has been a violation of the unions Duty of
Fair Representation. Carey v. Westinghouse, Vaca v. Sipes.
If union refues to represent EE, then the employee can file suit under 301 without exhausting
the arbitration/grievance (Hines).
o Post-award deferral by courts: judicial review of arbitration decisions
Steelworkers
Rule
Meets essence test was based interpreting the CBA (but very low requirement)
Affirmative misconduct
Fraud
NOT if just bad/errors in fact-finding or law
substantive vs. procedural
If there is a CBA in place, can the party bring Title VII claim separate from the arbitration machinery?
o If clear and unmistakable waiver => NO (Penn Plaza)
o If anything other than clear and mistakable waiver => Yes, rights are not waived (Wright)
Generally providng for arbitration in a CBA implies a no-strike clause, but it does not imply
that the EE waived rights to Title VII claim in district ct.

Midterm Modifications
Midterm Modifications => dealing with if the modification is NOT contained in the CBA if this is NOT a
provision in the contract:
RULE: If the topic of the modification is a mandatory subject of bargaining , and it is not contained in the
contract => the ER and U must bargain about this proposed modification if one party raises it. (you are
obligated to discuss)
o Ex. Jacobs: the union proposed a modification about pension, pension is a mandatory subject of
bargaining, they had to bargain about it after the union gave notice they wanted to bargain about i
o Even if it was discussed during the negotiations, if it is does contained in the contract, there will still be a
duty to bargain about it unless the ER can show the union waived right to bargain over the topic in the
future by conduct during neogitations.
HOWEVER, parites will not have to bargain if (and no 8a5 violation IF) over a mandatory subject if:
o Management rights clause must be explicit waiver of further negotiations (797)
If there was a management rights clause that explicitly provided that the union had waived its
ability to modify the specific term of the CBA during the term of the agreement, dont have to
bargain about the modification
But a basic, general management rights clause will not be effective to be a waiver
Ex. Jacobs for MRC to be waiver of bargaining, must be clear and specific.
o Zipper Clause (clear waiver) (787)

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Must be a clear, express, unequivocal, voluntary waiver of bargainig
Ex. the waiver clause by GM and UAW
o Waiver by Union Conduct
In Johnson Bateman, looked to past negotiations, conduct but didnt find waiver
Past conduct alone will not be waiver
ONLY will be a waiver if clearly and unmistakably waiving the Us right to bargain about the
topic
Past practices alone wont do it- just because something that ER didunilaterally in the past, does
not preclude the union in the future from objecting if ER fails to bargain about it. 8
o If the topic was merely DISCUSSED in the negotiations, but not WAIVED, it is considerd to be not
contained in the contract, and there IS a requirement to bargain about the proposed modification.

Successorship
Successorship - duty to bargain of the successor to bargain with the predecessors union?
o Substantial continuity in the conditions
based on totality of circumstances, established through factors: same work in the same place
business of both ERs essentially the same; same production process (Falls River: same
equipment); same body of customers; EEs considered the workplace to be replacement; hiatus
is a factor (here there was 7 month hiatus) but it is not decisive
o Substantial continuity in the workforce
When a company hires as a majority of its workforce (in an appropriate bargaining unit)
employees Modification in Falls River: DTB arises if continuity of workforce (majority) +
o DTB Arises When Substantial and Representative Complement of Employees is Reached
If at the moment of the substantial and representative complement, the majority of ER2s
employees were from the ER1, then the successor ER would have a duty to bargain with the
union representing the EEs.
How to determine substantial and representative complement? Board looks at factors,
including:
Whether the job classifications designated for the operation were filled or substantially
filled
Whether the operation was in normal or substantially normal production
Policy: ER wants full complement, notes use of that language in Burns (true) also says
that there is an interest in having a majority of the EEs want to have a union
Court countes: there is also a significant interest in the EEs being represented ASAP
especially because the EEs used to have a union, now dont, bad for moral =>
therefore nix the ERs full complement rule/language, adopt substantial and
representative complement rule.
**Note on application: conflicting pressures on ER
Once the EEs have reached substantial and representative complement, the ER will be
violating 8(a)(5) if U has requested to bargain and ER refuses to bargain with U.
OTOH, if ER recognizes U when its too earlybefore substantial and representative
complement has been reachedthen the ER risks violating 8(a)(2).
Also, its the ER who must determine whether at substantial and representative complement,
o Continuing Demand Rule => Once U makes the demand, it stays in effect as a continuing demand.
i. The successors duty to bargain with the union (H1) at the substantial and representative
complement of EEs (H2) is triggered only once the union has made a bargaining demand.
However, once the union has made a demand to bargain, even if this si a premature demand
that has been rejected by the employer, this demand remains in force until the moment the ER
attains substantial and representative complement of his/her employees (and the DTB arises
& if doesnt 8a5 violation.).

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Successorship -- duty to bargain of the successor to arbitrate grievances under the predecessors CBA?
o Taking Liablity for Preds ULPs
Golden State Bottling Co. where
(1) existing ULPs and
(2) successor took over with KNOWLEDGE of those ULPs,
Then the board has the statutory authority under NLRA to treat the bona fide
purchaser as successor to ER1s liability for a preexisting ULP
Why were they liable => because had knowledgeof preds ULPs, they had a duty to
remedy it because they had knowledge of it.
o Duty to arbitrate grievances under the preds CBA
Wiley Test
(1) Identity Issue: What percentage of the predecessors employees has the successor
hired?
o If has hired a majority of the preds employees, then there is substantial
continuity of identity ex. Wiley
o If has not not substantial continuity of identity ex. Howard Johnson
(2) Type of Purchase Is Pred ER Still in Existence?
o Corporate merger, ER was absorbed by non-U successor, and CBA
terminated. Successor merged ER must arbitrate under (the previous unions)
CBA about grievances which had arisen while CBA existed, if substantial
continuity of identity. no longer in existence.
o Compare with pure purchase of assets (HoJo)
o And compare with stock purchase: where the old ER still has the same EEs,
no change to who the U bargain with, or who the CBA is with. Here, the old
union would still have its CBA with its old employer, the purchaser of the
stock would NOT have to arbitrate grievances under the CBA (or be under the
CBA).
If have duty to arbitrate, arbitraror will decide which substantive provisions of old
CBA survive
Howard Johnson issue of pure purchase of assets vs. the Wiley situation of a corporate
merger
Key distinctions
o Substantial Continuity of Identity vs. Not Hiring Back the Workers
Wiley => hired back all the EEs, which didnt do in HJ
HJ => Only hired back 9 of the 53 EEs; not a substantial continuity of
identity
o This wasnt a merger, this was an asset purchase
Wiley => was a complete merger, where the old company was
completely absorbed into the new entity, and the initial employing
entity (corporation) completely disappeared,
Howard Johnson => this case involved instead only a sale of some
assets; the initial employers remained in existence as viable corporate
entities (they are still family doing business, they are now getting $$
from leasing the hotel to HJ).

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Therefore, Wiely had to arbitrate from old CBA, here dont have to arbitrate the
unions claims even though there was clause in that CBA that would be binding on
succcesors that there was language suggesting this.
o Double-Breasted Employer
Situation: sub-contractor that is already unionized may decide to create a parallel,
nonunionzed entity in order to submit bids to GCs who invite bids from non-U sub-
contractors. A union can then contend that the 2 entities are actually a singular employer and
that the CBA with the one company (the unionzed company) extends to the other, so the U
also has representation over the other EEs.
If the ER says okay = > now U represents all
More likely => ER says NO rejects the union, union may file 8(a)(5) charge.
Board will do 2-step analysis to 8(a)(5) charge
Step 1: Are the 2 entities properly to be treated as a single integrated ER?
o Common operations, common ownership, common mgmt., cerntalized control
of labor relations
o If no => end of analysis. If yes => Step 2.
Step 2: If yes, do the 2 enterprises constitue a single bargaining unit? => community
of interest test.
If yes to both, then the 2 entities will be a signle appropriate BU and the U will be
the rep of all the workers and the contract of the 1 union will now cover the terms of
employment for both.
Pre-Emption
(1) NLRA prohibits state law that is protected or prohibited by the Act, or that arguably
protected or prohibited by the Act. Court protects the primary jxn of the NLRB to determine
in the first instance the kind of conduct that is prohibited or protected by the NRLA. Be on
the lookout if it is a state law if it could conflict.
Ex. No strikes on Sundays would be preempted because you have the NLRA s7
right to concerted activity 7 days a week.
(2) sometimes Protection against state interference with policies implicated by the structure
of the Act, by pre-empting state law and state cause of conduct concerning action that
Congress intended to be unregulated.
o But, post-Garmon states can determine:
Sometimes subject to balancing test areas that implicate the NLRAs policies (ex. Met
Life -- policies of freedom to contract in the CBA).
Areas that are background to CBA negotiations
Mandatory pensions Massachusettes
Maine severance pay
Matters deeply rooted in local feeling and concern
Criminal activity
Intentional torts
Violence: if there is a strike and people are getting hurt, state law can come in
(injunction or damages by state court, compensatory or punitive damages)
These get to the manner in which people picket not the purpose
o Cases:
Oliver (911) - Teamsters had agreement with trucker carriers, Teamsters had minimum rental
agreement, but this guy had his own truck. He argued that Ohios anti-trust laws limited
Teamsters from bargaining over the minimum rental. law was pre-empted where the state
law was going to interefere with Us bargaining for wages same would be true if the state
law were to interfere about term or condition. preempted because interfered with
bargaining for wages, mandatory subject
Met Life (Mass requirements for mental health insurance)

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Balancing test:
o Where federal labor law incompatible => OVERRIDES
o Where compatible => state law can add with end requiremnts for regulated
areas such as insurance here
Fort Halifx Maine had statute about mandated severance pay.
Held: not inconsistent with NLRA
(mgmt. argues: inconsistent, cannot apply this, state law preempts, U argues: this can
be enforced [policy was good for them] does not pre-empt.
Both ER and EE come to the bargaining table with background rights and tuies state
law can form a backdrop for negotiations
Duty of Fair Representation
o Union has duty to exercise fairly the power it has on behalf of those it represents fairly without
acting arbitrary, discriminatory, or in bad faith (capricious) (Vaca) statutory obligation of U
to represent all members of disgnated unit without hostility or discrimination toward any, exercise
discretion with complete good faith and honesty, and to avoid arbitrary conduct BUT NOT TO
NOT BE NEGLIENT
Cannot arbitrarily ignore a meritous grievance or process it in a perfunctory fashion (Vaca),
BUT the union can be negligent. Vaca v. Sipes.
Perfunctionary not allowed (Hines: truck motel, failed to even investigate the
case at all)
But can be negligent
Rawson (91 miners killed when U had been negligent in its safety inspections) any
negligence by the union in carrying out safety inspections could not violate the duty of
fair representation rather must be standard of intent or recklessness to have
violation
United Foods Approch: rather than allowing always negligent, consider spectrum of
reasonablemess - reasonableness continuum/reasonableness standard view (United
Foods)
On one end: intentional conduct by a union exercising its judgment, entitled to
deference, even if it is wrong - Airpline Pilots
On the other end: acts/omissions that are irrational or wholly inexplicable, ex.
irrational failure to perform a ministerial or procedural act.
o These these WOULD br. DFR.
o Ex. taking the grievance and putting it on the arbitrators desk and then not
following up if they didnt do anything with it.
Also look at:
o the strength of the EEs individual interest in the claim
o vs. the unions failure to perform the action ex. if it was a ministerial act.
o Vaca v. Sipes - DFR in negotiation
Employee does NOT have an absolute right to have his grievance taken to arbitration,
regardless of the provisions of the collective bargaining agreement.
U, if exercising its power in good faith, has the statutory ability to settle grievances short of
arbitration.
o Result of Vaca on employee claims if not brought to arbitration by union (see p. 981)
If U brings claim to arbitration, EE can get 301 review => but will almost 100% defer to
arbitrator
So now if U does not bring claim to arbitration, EE can only get judicial review if can show
that union does not have good faith in his claim. If EE alleges this, will argue (1) Union
breached DFR and (2) Because union breached DFR, I have a valid claim against employer.
have to prove not only that Er breached the contract, but that the union did not fairly
represent in the contract proceedings

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Con: makes a simple breach of contract claim more complicated; turns theU into the
arbitorar because they might still have to not take some serious grievance
o Berrginger (981) dont need to have a CBA violation to have a DFR claim -claim against U that
they were not treating him fairly in the hiring hall.
o Union News union did not violate DFR (or act fraudulently, collusively, or bad faith) in agreeing
that the company permenantly discharge 5 people who had not been proven to be dishonest with the
cash register, but who after temp replaced, no more theft from cash register (even though 12 people
worked at the store) union was exercising its authority on behalf of the collective interest. The union
could therefore conclude that the circumstances provided just cause for the layoff and she could be
laid off.
Con: Justice Blacks dissent from the case of another one of the Union New workers this
shows the great kind of injustice when the employer and the union have such power over the
EEs claim for breach of contract