Transcript STEPHEN B. FORMANLABOR LAW

LABOR LAW
STEPHEN B. FORMAN
GEORGE MASON
UNIVERSITY SCHOOL OF
LAW
CLASS #1
Course Overview; Evolution of the Labor
Laws; NLRB Jurisdiction, Organization and
Procedure
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Course Administration
Course Overview
Evolution of the Labor Laws and
Overview of NLRA Provisions
NLRB Organization
Unfair Labor Practice Proceedings
Representation Proceedings
NLRB Jurisdiction
CLASS #1
Course Overview
1
2
3
4
5
6
7
8
9
10
Course Overview, Evolution Of The Labor Laws,
NLRB Jurisdiction, Organization And Procedure
Interference, Restraint And Coercion
Election Propaganda, Other Forms Of Interference,
Restraint Or Coercion, Union Misconduct
Company Domination, Interference Or Assistance
Discrimination And Remedies For Unfair Labor
Practices
Selection Of Bargaining Representative
Appropriate Bargaining Unit
Securing Bargaining Rights Through Unfair Labor
Practice Proceedings
Company Withdrawal Of Recognition Of Incumbent
Union
Negotiation Of The Collective Bargaining Agreement,
The Duty To Bargain In Good Faith, The Duty To
Disclose Information And Subjects Of Collective
Bargaining
CLASS #1
Course Overview Continued
11
12
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14
15
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19
20
21
Subjects Of Collective Bargaining, The Effect Of The
Strike On The Duty To Bargain And Bargaining
Remedies
Protected Concerted Activity
Employer Responses To Concerted Activities
CLASS DEMONSTRATION - COLLECTIVE
BARGAINING
Organizational And Recognition Picketing
Secondary Picketing And Consumer Appeals
The Collective Bargaining Agreement And Grievance
And Arbitration
MOCK ARBITRATION
MOCK ARBITRATION
Judicial Enforcement Of Collective Bargaining
Agreements
Judicial Enforcement Of The No-Strike Clause; The
Role Of The NLRB And The Arbitrator
CLASS #1
Course Overview Continued
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23
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25
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27
28
Successorship
Preemption Of State Labor Laws
The Right To Fair Representation
Union Security And The Encouragement Of Union
Activities
Discipline Of Union Members And The Effect Of The
NLRA
To Be Announced
Current Labor Issues And Course Exam Matters
CLASS #1
Evolution of the Labor Laws and
Overview of the NLRA
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The Wagner Act (1935)
• sections 7, 8
The Taft-Hartley Act (Labor Management
Relations Act of 1947)
• sections 7, 8(b), (c), (d), 9(c), 10(b), (j),
14(b), 301, 303
Landrum-Griffin Act (Labor Management
and Reporting Disclosure Act of 1957)
• sections 8(b)(7), 8(e), (f)
Health Care Institution Amendments of
1974
CLASS #1
Section 7 Employee Rights
§ 7. Rights of employees as to organization, collective
bargaining, etc.
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also
have the right to refrain from any or all of such activities
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3)
CLASS #1
Section 8(a) Employer Unfair Labor
Practices
§ 8. Unfair labor practices (a) Unfair labor practices by employer.
It shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7
(2) to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage
or discourage membership in any labor organization
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under
this Act
(5) to refuse to bargain collectively with the
representatives of his employees, subject to the provisions of
section 9(a)
CLASS #1
Section 8(b) Union Unfair Labor
Employment Practices
§ 8(b) Unfair labor practices by labor organization. It shall be an
unfair labor practice for a labor organization or its agents-(1) to restrain or coerce employees in the exercise of the rights
guaranteed in section 7
(2) to cause or attempt to cause an employer to discriminate against
an employee in violation of subsection (a)(3)
(3) to refuse to bargain collectively with an employer
(4) (i) to engage in, or to induce or encourage any individual to
engage in, a strike or (ii) to threaten, coerce, or restrain any person
where in either case an object thereof is ---
(7) to picket or cause to be picketed any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with
a labor organization unless such labor organization is currently
certified as the representative of such employees where -
CLASS #1
NLRB Organization and Procedures
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The Board
The General Counsel
The Administrative Law Judges
The Regional Offices
Unfair Labor Practice
Procedures
Representation Procedures
CLASS #1
Jurisdiction and Coverage of the NLRA
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Territorial US
Section 2(2) Exclusions
Assertion of Commerce Coverage
Section 2(3) Definition of Employee
• interns and residents
• salts
• supervisors
• managerial employees
• confidential employees
• independent contractors
CLASS #1
Section 2(11) Definition Of A
Supervisor
(11) The term "supervisor" means any
individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign,
reward, or discipline other employees, or
responsibly to direct them, or to adjust their
grievances, or effectively to recommend such
action, if in connection with the foregoing the
exercise of such authority is not of a merely
routine or clerical nature, but requires the
use of independent judgment
CLASS #2
Interference, Restraint and Coercion
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Section 8(a)(1)
Union Buttons and Insignias
No Solicitation/No Distribution Rules
• facial invalidity, unlawful promulgation,
unlawful enforcement
Non-Employee Access Rights
Off-Duty Employee Access Rights
Captive Audience Speeches
Excelsior Underwear Rule
E-Mail
CLASS #2
Section 8(a)(1) Unfair Labor Practice
§ 8(a) It shall be an unfair
labor practice for an
employer—
(1) to interfere with,
restrain, or coerce employees
in the exercise of the rights
guaranteed in section 7
CLASS #2
No Solicitation/No Distribution
Rules For Employees
NOTICE
SOLICITATION BY EMPLOYEES ON
COMPANY PROPERTY DURING WORKING
TIME IS PROHIBITED
DISTRIBUTION OF LITERATURE BY
EMPLOYEES ON COMPANY PROPERTY
DURING WORKING TIME OR IN WORKING
AREAS AT ANY TIME IS PROHIBITED
CLASS #2
No Trespassing Notice
NOTICE
SOLICITATION AND/OR
DISTRIBUTION OF ANY
LITERATURE BY NONEMPLOYEES ON COMPANY
PROPERTY IS PROHIBITED
CLASS #3
Election Propaganda, Other Forms of
Interference, Restraint or Coercion,
Union Misconduct
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TWIGS
Threats
• balance free speech with uncoerced employee
free choice
• overturning elections if laboratory conditions
are violated, even if not ULP
• direct or implied threats (unlawful) versus
predictions (lawful)
Factual Misrepresentations During Election
Campaign
• racial inflammatory appeals
Timing of Laboratory Period
CLASS #3
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Interrogation and Polling
Spying or Surveillance
Granting (or promising to grant)
Benefits
Withholding Benefits
Remedies
Union Misconduct
CLASS #3
Section 8(c) Free Speech Provision
Section 8(c) Expression of views without
threat of reprisal or force or
promise of benefit
The expressing of any views, argument,
or opinion, or the dissemination thereof,
whether in written, printed, graphic, or
visual form, shall not constitute or be
evidence of an unfair labor practice under
any of the provisions of this subchapter, if
such expression contains no threat of reprisal
or force or promise of benefit
CLASS #4
Company Domination, Interference or
Assistance
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Section 8(a)(2)
Section 2(5) - What is a Labor
Organization
Domination, Assistance, Interference
• continued recognition of
incumbent union in face of rival
union organizing
• initial recognition of union when a
rival union is also organizing
CLASS #4
Section 8(a)(2) Unfair Labor Practice
Sec. 8 (a) It shall be an unfair labor practice for an
employer(2) to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it: Provided, That subject to
rules and regulations made and published by the Board
pursuant section 6, an employer shall not be prohibited
from permitting employees to confer with him during
working hours without loss of time or pay
CLASS #4
Section (2)(5) Definition
(5) The term 'labor organization' means any
organization of any kind, or any agency or
employer representation committee or plan, in
which employees participated and which exists for
the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or
conditions of work
CLASS #5
Discrimination and Remedies for
Unfair Labor Practices
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Section 8(a)(3) ULP And Section
10(c) Just Cause
Pretext and Dual Motive Cases And
Burden Of Proof
• small plant doctrine
Court Standard For Review Of Board
Decisions
Constructive Discharge
CLASS #5
Section 8(a)(3) Unfair Labor Practice
§ 8 It shall be an unfair labor
practice for an employer—
(3) by discrimination in regard to
hire or tenure of employment or any
term or condition of employment to
encourage or discourage membership in
any labor organization
CLASS #5
Section 10(c)
No order of the Board shall require the
reinstatement of any individual as an
employee who has been suspended or
discharged, or the payment to him of
any backpay, if such individual was
suspended or discharged for cause.
CLASS #5
Discrimination and Remedies for
Unfair Labor Practices
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Limitations on backpay remedy
• after acquired evidence
• illegal aliens
Closing Employer’s Business
• complete business closing
• partial business closing
Limited Protection For Supervisors
Reinstatement and Mitigation Of Damages
Statute Of Limitations
Injunctive Relief Under Sections 10(j) and
10(l)
CLASS #6
Selection of Bargaining
Representative – Section 9
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Voluntary Recognition
• neutrality and card check agreements
Types of Elections (RC, RD, UD, UC)
RM (union demand for recognition; loss of support)
Showing of Interest
• exception - expedited election under 8(b)(7)(C)
Blocking Charge
Unlawful Employer Assistance
Fluctuating Workforce
Timeliness of Petition
• section 9(c)(3) statutory bar (1 yr)
• administrative bar (6 months)
• certification bar (1 yr)
• voluntary recognition bar (reasonable time)
CLASS #6
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Contract Bar Doctrine
• open period; insulated period; expanding unit
Accretion
Election Procedures
• Board poster; commerce questionnaire
• consent elections
• hearing and direction of election
• eligibility list
• notice of election
• pre-election conference and election observers
• balloting, challenges, objections
• run-off and re-run elections
CLASS #6
Contract Bar Doctrine
K Starts
K Ends
K period
Post K
Termination
Period
K bar
Open
Insulated
Period Period
CLASS #6
Runoff and Rerun Elections
Eligible 17
Union A 8
Union B 8
Neither 1
Eligible 77
Union A 36
Union B 0
Neither 36
Runoff
Election
Eligible 17
Union A 5
Union B 5
Neither 5
Eligible 16
Union A 5
Union B 5
Neither
6
Nullity and
Rerun
Election
Eligible 18
Union A 9
Union B 9
Neither
0
Eligible
Union A
Union B
Neither
16
0
8
8
Certification
of Results
CLASS #7
Appropriate Bargaining Unit
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Community of Interest Standard
• Multi-factor analysis
• Special rules for craft employees and
grouping professional and nonprofessional employees
• Special rules for health care facilities
• Guards
• Supervisors
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Single Location vs Multiple
Locations
• Single location presumption
CLASS #7
Appropriate Bargaining Unit
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Multi-employer Unit
• Recognition
• Withdrawal
• Coordinated Union Bargaining
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Temporary Employees
Review of Representation
Proceedings
• 8(a)(5) refusal to bargain challenge
CLASS #8
Securing Bargaining Rights through
Unfair Labor Practice Proceedings
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Obtaining Union Recognition
• recognition through a voluntary
card check or non-NLRB election
• employer refusal to do card check
• RC election
• Gissel bargaining order
CLASS #9
Company Withdrawal Of Union
Recognition
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Withdrawal Of Recognition
• certification and recognition bars
• employer withdrawal of recognition actual union loss of majority support
(Levitz Furniture Co.)
• RM petition to decertify union – good
faith uncertainty (Levitz Furniture Co.)
• polling employees - Allentown Mack
CLASS #10
Negotiation of the Collective
Bargaining Agreement and the Duty to
Bargain in Good Faith
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Sections 8(a)(5) and 8(b)(3)
Individual Employee Contracts
Good Faith Bargaining
Surface Bargaining
Hard Bargaining vs. Bad Faith
Bargaining
Regressive Bargaining
CLASS #10
Section 8(a)(5) Unfair Labor Practice
§ 8(a) It shall be an unfair labor
practice for an employer—
(5) to refuse to bargain
collectively with the
representatives of his
employees, subject to the
provisions of section 9(a)
CLASS #10
Section 8(b)(3) Unfair Labor Practice
§ 8(b) It shall be an unfair labor
practice for a labor organization or
its agents-(3) to refuse to bargain collectively
with an employer,provided it is the
representative of his employees
subject to the provisions of section
9(a)
CLASS # 10
Section 8(d)
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Section 8 (d) For the purposes of this section, to
bargain collectively is the performance of the
mutual obligation of the employer and the
representative of the employees to meet at
reasonable times and confer in good faith with
respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and
the execution of a written contract incorporating
any agreement reached if requested by either
party, but such obligation does not compel either
party to agree to a proposal or require the making
of a concession: Provided, [notice period [prior to
making changes]
CLASS #10
The Duty to Disclose Information
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Disclosure of Information
• bargaining unit/non-bargaining unit
A Union Strike While Still Bargaining
• Employer Obligation to Continue
Bargaining
• Employer Action Against Strikers
• protected strike/unprotected strike
Employer Pre-Impasse Unilateral
Action/Post Impasse Action
CLASS #11
Subjects of Collective Bargaining
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Mandatory, Permissive and Illegal
Subjects of Bargaining and Their
Effect on the Duty to Bargain
CLASS #11
Differences Between Mandatory and
Permissive Subjects of Bargaining for
a New Contract
 Cannot Refuse to Bargain at Request of
Other Party if mandatory
 Cannot Insist to Impasse on Inclusion of
Item in the Contract if permissive
 Cannot Unilaterally Implement Without
Bargaining to Impasse if mandatory
 Cannot Refuse to Disclose Relevant
Information Requested by Other Party if
mandatory
CLASS #11
Mandatory Bargaining Subjects That
Can Be Unilaterally Changed Without
Bargaining After Contract Expires
 No
Strike Clause
 Requirement to Arbitrate
Grievance
 Union Shop and Dues Check-off
CLASS #11
Collective Bargaining Subjects
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Sub-contracting
Shutting Down Part of the Business
for Economic Reasons
Relocating the Business
Effects Bargaining
Mid-term Contract Modifications
Effect of the Strike on the
Employer’s Right to Act Unilaterally
CLASS #11
Mid-term Contract Modifications
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Subject is
Included in CBA
 not required to
bargain at request
of other party
 cannot modify w/o
other party’s
consent
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Subject is not
Included in CBA
 must bargain at
other party’s
request if
mandatory subject
 can modify
mandatory subject
after bargaining to
impasse; can modify
permissive subject
w/o bargaining
CLASS #12
Protected Concerted Activity
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Section 7 Rights
Concerted Activity
• individual vs. concerted activity
• asserting CBA rights
• asserting statutory rights
• Weingarten rights?
Protected Activity
• working conditions outside employers
immediate control
CLASS #12
Protected Concerted Activity
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Unprotected Activity
• product disparagement/disloyalty
• unprotected objective/unprotected
method of employee protest
• partial strike, slowdown,
intermittent strike, sit-down strike
CBA waiver of right to strike
• sympathy strike; ULP strike
CLASS #13
Employer Responses to Concerted
Activities
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TYPES OF
EMPLOYEE
ACTION
• unprotected
strike
• economic strike
• sympathy strike
• ULP strike
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TYPES OF EMPLOYER
RESPONSE TO STRIKE
• fire strikers
• temporarily replace
strikers
• permanently
replace strikers
• superseniority to
replacements and
non-strikers
• withholding benefits
from strikers
CLASS #13
Employer Lockouts
 Defensive
lockout
 Multi-employer lockout
 Offensive lockout
 Lockout replacements
CLASS #14
Class Demonstration - Collective
Bargaining Negotiations
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Stephen B. Forman - Major
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Henry Morris, Jr. - United
Container Company
Paperworkers International
Union, AFL-CIO
CLASS #15
Organizational and Recognitional
Picketing
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Section 8(b)(7)
What is Picketing
Organizational or Recognitional Objective
Area Standards Picketing
Section 8(b)(7)(C)
• 30 days; reasonable time
• expedited election proviso
• informational picketing proviso
• appeal to the public
• no effect on deliveries
CLASS #15
Section 8(b)(7)
8(b)(7) It is a ULP for a union to picket or threaten to picket where an
object thereof is forcing or requiring an employer to recognize or bargain
with a union or forcing or requiring the employees to accept the union as
their representative, unless such union is currently certified as the
representative of such employees: (A) where the employer has lawfully
recognized any other union and a QCR may not be raised (B) where within
the preceding twelve months a valid election has been conducted, or (C)
where such picketing has been conducted without a petition being filed
within a reasonable period of time not to exceed thirty days from the
commencement of such picketing: Provided, That when such a petition has
been filed the Board shall forthwith, direct an election : Provided further,
That nothing in this subparagraph (C) shall be construed to prohibit any
picketing or other publicity for the purpose of truthfully advising the public
(including consumers) that an employer does not employ members of, or
have a contract with, a union, unless an effect of such picketing is to
induce any individual employed by any other person in the course of his
employment, not to pick up, deliver or transport any goods or not to
perform any services.
CLASS #15
Section 8(b)(7)(C)
Company Does
Nothing
Company Files
8(b)(7)(C)
Company Files
8(b)(7)(C) and an
Election Petition
Union Pickets &
Files Election
Petition Within 30
Days
Normal Election
Union Picketing
Union Picketing
Less than 30 Days More than 30
W/O Filing Petition Days W/O Filing
Petition
No Election
No Election and
Picketing May
Continue
Expedited
Election
No Election but
NLRB Issues
Complaint and
Seeks 10(l)
Injunction
Expedited
Election
CLASS #16
Secondary Picketing and Consumer
Appeals
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Section 8(b)(4)(B)
• 10(l) injunction; 303 action
Secondary Boycott
Moore Dry Dock Common Situs Standards
Ambulatory Situs
Allied and Single Entity Doctrines
General Electric Primary Situs Doctrine
Tree Fruits Consumer Picketing Doctrine
• merged product and single product exceptions
Consumer Handbilling
CLASS #16
Section 8(b)(4) Prohibition
A secondary boycott is 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.
-Inducement of P’s employees to strike is primary concerted
activity
-request to Company S to cease buying product of Company P is
primary product boycott
-attempt to coerce Company S to cease buying from or supplying
Company P by appealing to S’s employees to engage in a work
stoppage or by appealing to S’s customers to boycott S’s product
is unlawful secondary activity
CLASS #16
Secondary Picketing and Reserved
Gate
General Electric Situation
PRIMARY SITE
(Schlitz Beer Distributor)
NEUTRAL GATE
(outside janitors)
PRIMARY GATE
(beer drivers)
Moore Dry Dock Situation
NEUTRAL SITE
(supermarket)
NEUTRAL GATE
cashiers
PRIMARY GATE
(beer deliveries)
CLASS #16
Consumer Picketing and Handbilling
NEUTRAL SITE
(supermarket)
NEUTRAL GATE
PICKETS WITH
SIGNS SAYING
DON’T BUY
SCHLITZ BEER
NEUTRAL GATE
HANDBILLS
SAYING UNION IS
ON STRIKE
AGAINST SCHLITZ
BEER-PLEASE
DON’T SHOP AT
SUPERMARKET
PRIMARY GATE
(beer deliveries)
CLASS #17
The Collective Bargaining Agreement
and Grievance and Arbitration
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Contract Interpretation Disputes
• negotiating history
• custom and practice
Discipline Cases (just cause)
• factual proof
• level of punishment
• industrial due process
• progressive discipline
Burden Of Proof
CLASS #17
Selection Of Arbitrators’ And
Their Qualifications
 Splitting Awards
 Transcripts, Oaths
 Evidence
 Role Of Law
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CLASS #20
Judicial Enforcement of Collective
Bargaining Agreements
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Suits to Compel Arbitration Under Section 301
• substantive law in 301 action
• does the CBA require arbitration?
• 301 jurisdiction in state or federal court
• presumption of arbitrability
• substantive arbitrability
• procedural arbitrability
Enforcement of Arbitrator’s Decision
• reasons for overruling arbitrator
• fraud, lack of due process,exceeding scope of
authority provided by CBA, public policy,
manifest disregard of the law
CLASS #20
Actions Available to Aggrieved Party
for Breach of Contract
+301 suit to compel arbitration
+8(a)(5) ULP charge
+301 suit for breach of contract
if no arbitration clause in the
CBA
CLASS # 21
Judicial Enforcement of the No-Strike
Clause; The Role of the NLRB and the
Arbitrator
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Judicial Enforcement of the
No-Strike Clause
• Boys Markets Injunction
for breach of no-strike
clause
• sympathy strike exception
CLASS #21
Remedies Available to Employer faced
With A Boys Market Strike
+ 301 action to enjoin strike/compel
arbitration
+ 301 action for damages caused by
the strike
+ 8(b)(3) ULP; request for 10(j)
injunction
+ discharge strikers
CLASS #21
The Role of the NLRB and the
Arbitrator (conduct which allegedly
violates the CBA and the NLRA)
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Post-Arbitration Deferral Cases
• Spielberg Mfg standards - deferral:
• Where the arbitration proceedings
were fair and regular
• Where all the parties agreed to be
bound by the arbitration decision
• Where the arbitration decision was
not repugnant to the Act’s purpose
and policies
• Where the issue involved in the ULP
was presented to and considered by
the arbitrator
CLASS #21
The Role of the NLRB and the
Arbitrator (conduct which allegedly
violates the CBA and the NLRA)
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Pre-Arbitration Deferral Cases
• Collyer policy – deferral:
• Where there is no claim of employer
antagonism to employees’ exercise of
their NLRA rights
• Where the employer has agreed to
resolve the merits of the dispute
through arbitration
• Where the dispute requires
interpretation of the CBA
CLASS #21
Judicial Deference to Arbitration under
Title VII
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Waiver of EEO Rights in
CBA?
• Alexander v. Gardner-Denver
• Gilmer v. Interstate/Johnson
Lane Corp.
• Wright v. Universal Maritime
Service
CLASS #22
Burns Int’l Security Services and
Fall River Dyeing & Finishing Corp.
Situation (1)
Burns case
Union
certified
One
year
purchase
Situation (2)
Falls River
Union
certified
One
year
case
purchase
CLASS #22
Successorship
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Successor’s Obligation to Accept the
Predecessor’s CBA?
Purchaser’s Right to Set Initial Terms and
Conditions?
• Perfectly clear exception
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Successor’s Obligation to Recognize the
Union That Represented Predecessor’s
Employees?
• Majority of workforce predecessor’s employees?
• Continuity of workforce?
• Substantial and representative complement?
CLASS #22
Successorship
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Purchaser’s Obligation to Hire
Predecessor’s Employees?
• 8(a)(3) discrimination prohibited
• D.C. Displaced Workers Protection
Act
CLASS #22
Successorship
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Recognition Bar After
Purchase?
Contract Bar of Successor’s
CBA?
Alter Ego and Stock Purchases
Successor’s Liability for
Predecessor’s ULPs?
CLASS #22
Successorship And Duty To Arbitrate
Howard Johnson Co. sale
of assets situation
Successorship clauses
in CBA
Class #23
Overview of Preemption of State
Labor Laws
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Analytical Approaches to
Preemption
• substantive rights theory
• primary jurisdiction theory
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Garmon Arguably
Protected/Arguably Prohibited
Preemption
Machinists Free Play Preemption
Exceptions
• deeply rooted local interests
• state law only touches activity that is of
CLASS #23
Preemption Applied to Representation,
Collective Bargaining and Enforcement of
Collective Bargaining Agreements
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Choosing Bargaining
Representatives
Collective Bargaining Matters
• statutorily mandated benefits
• severance pay
• unemployment compensation
CLASS #24
The Right to Fair Representation
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
Source of Duty of Fair Representation
Remedies for ULP Violation of DFR
Jurisdiction for DFR Lawsuits
DFR Statute of Limitations
DFR Lawsuit Remedies
•
•
•
•
•

injunctive relief?
punitive damages?
compensatory damages?
attorneys’ fees?
jury trial?
Standard for Duty of Fair Representation
CLASS #24
When May a Court Find the Employer
Has Breached the Labor Contract?
Arbitration
Decision for
the Company
Union Refuses
to Proceed to
Arbitration
Union
Court may
Court may
Breaches DFR find breach of find breach of
contract
contract
Union Does
Not Breach
DFR
Court will
usually
enforce
award
Court may not
find breach of
contract
CLASS #25
Union Security


8(a)(3) Proviso for Union Shop
Forms of Union Security
• union shop
• agency shop
• maintenance of membership





Right to Work State
Religious Exemption
Dues Check-off
Beck Rights
De-authorization Petition
CLASS #26
Disciplining Union Members Under The
NLRA


External enforcement of a union rule
(to affect member’s employment
status) is ULP
Internal enforcement is lawful if rule
does not invade or frustrate labor
policy, rule reflects a legitimate
union interest and rule is enforced in
a reasonable manner (e.g. not
through violence) against union
members who are free to resign from
the union and thereby escape the
rule.
CLASS #26
Disciplining Union Members Under The
NLRA
CONDUCT
Crossing picket line
Resigning membership and
crossing picket line
Exceeding production quota
Fling decertification petition
Filing ULP against union
Truthfully testifying against union
Crossing CBA unlawful picket line
Expel?
Fine?
yes
yes
yes
no
yes
yes
no
no
no
yes
no
no
no
no
GOOD LUCK TO
EVERYONE