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collective-bargaining process. The 1947 amendments recognize that a company
may pay a union employee if such person is also an employee of the company.
Thus, these applicants were employees and entitled to Town & Country’s
compliance with fair labor practices. National Labor Relations Board v. Town &
Country Electric, Inc., 116 S.Ct. 450 (1995).
2. A shopping plaza owner barred union organizers who weren’t store employees
from distributing handbills in the plaza’s public parking lot.
Issue: An unfair labor practice?
(1992).
3. Helton, a waitress at Johnson’s restaurant, filed unfair labor practice charges with
the NLRB, alleging that she had been fired because of her efforts to organize a
union. Later, Helton and other waitresses picketed the restaurant and distributed
leaflets. The restaurant then filed a suit for damages against Helton and other
demonstrators in an Arizona state court alleging harassment and libel. On the
following day, Helton filed a second charge with the NLRB, alleging that the
civil suit was filed in retaliation for the defendant’s protected, concerted
activities and filing of charges with the NLRB.
Issue: Is the lawsuit an unfair labor practice?
4. Employees refused to cross a picket line connected with a union’s organizational
campaign. They were discharged prior to the time their places were filled for
failing to report to work.
Issue: Is this discharge an unfair labor practice?
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Held: Yes. The discharges constituted unfair labor practices regardless of
whether or not the employees were economic strikers or unfair labor practice
strikers. N.L.R.B. v. International Van Lines, 93 S.Ct. 74 (1972).
5. An employer refused to pay vacation benefits to employees who had been on
strike on a certain date.
Issue: Is this refusal an unfair labor practice?
Inc., 87 S.Ct. 1972 (1967).
Additional Matters for Discussion:
That a violation of the concerted activities provision does not have to involve a
union. It protects employees acting for mutual aid and protection.
That employer rules prohibiting solicitation during “working time” are
presumptively valid. Rules banning solicitation during “working hours” are
presumptively invalid.
That an employee’s preparation to testify under subpoena at trial of union activist
charged by employer with criminal wrongdoing constitutes concerted activity
which cannot be interfered with by the employer.
Interfering with Concerted Activities
Emphasize:
That the term concerted activity is given a liberal interpretation in order to
create a climate that encourages unionization, collective bargaining, and all
that may flow from such activity.
That the concerted-activity concept is quite extensive.
The right to engage in concerted activity has been expanded to cover the
actions of a sole employee under certain circumstances.
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Under the Wagner Act, any organization of employees must be completely
independent of their employers.
Discriminating Based on Union Affiliation
Emphasize:
That the third labor practice, an employer may neither discharge nor refuse to
hire an employee to either encourage or discourage membership in any labor
organization.
The law does not oblige an employer to favor union members in hiring
employees.
That a company may not go partially out of business because some of its
employees have organized, nor many it temporarily close the portion of its
business that has unionized.
Case for Discussion:
1. Company’s bargaining agreement with employees contained a no-strike clause.
However, there was no provision in the contract requiring union officials to
prevent illegal work stoppages. On two previous occasions, arbitrators had ruled
in the company’s favor when resolving illegal work stoppages. When union
members and leaders refused to cross a picket line (established by a different
union), the company suspended employees who were union members for five to
ten days. The employees who were union leaders were suspended for 25 days.
Issue: Is the company’s action an unfair labor practice?
Metropolitan Edison Company v. National Labor Relations Board, 103 S.Ct.
1467 (1983).
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course of action.
That many cases that violate this unfair labor practice also involve a violation of
at least one other unfair labor practice.
Refusing to Bargain in Good Faith
Emphasize:
That the act imposes an affirmative duty to bargain in good faith but does not
clearly define what good faith means.
That the process requires each side to have adequate information to function
efficiently so a duty to disclose relevant information has been placed on the
employer.
Sidebar 22.6—“This Was No Joke: The Writers Guild of America Strike”
Sidebar 22.7—“Fired! Venting About the Boss on Facebook”
Case for Discussion:
1. Ford has the contractual right to review the prices and quality of an in-plant
cafeteria and vending-machine service provided by an independent company.
The union wanted to negotiate over proposed increases in prices by the vendor,
and Ford refused. The NLRB found this a violation of the duty to bargain in good
faith.
Issue: Is this a compulsory bargaining issue?
follows that more, not less, collective bargaining is the remedy. Ford Motor
Company v. NLRB, 99 S.Ct. 1842 (1979).
Additional Matters for Discussion:
That an employer is able to make economic decisions unrelated to employment
free from the constraints of the bargaining table, especially when such decisions
are essential to the running of a profitable business. In order to accommodate
both the employer’s need for unencumbered decision-making and the employee’s
interest in job security, the test to balance these interests is: Bargaining over
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management decisions that have a substantial impact on the continued
availability of employment should be required if the benefit, for labor-
management relations and the collective bargaining process, outweighs the
burden placed on the conduct of the business.
III. The Taft-Hartley Act (LO 22-4)
Emphasize:
The historical perspective of the Taft-Hartley Act: the crippling strikes after the end of
World War II and the widespread feeling developed that the balance of bargaining
power had shifted to unions.
A. Eighty-Day Cooling-Off Period
Emphasize:
The role of the Federal Mediation and Conciliation Service.
Additional Matter for Discussion:
A court imposes an injunction for 80 days and orders workers on strike to go back
to work. Most do not return and those that do, refuse to do much work when on the
job. What happens next?
state his or her opinion but cannot make a threat or promise of benefit.
The connection between this section and Section 8(a)(1).
Examples of how stepping over the line will result in an unfair labor practice.
Additional Matters for Discussion:
How does one avoid having a statement against unionization be perceived as a
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o I wouldn’t vote for a union if I were voting.
o Use your head and analyze the pros and cons.
o It’s up to you and the other workers to decide. The law prohibits management
from making threats or promises.
Sidebar 22.9—“Restricting Workplace Speech: Setting the Parameters”
C. Union Shop—Membership and Fees
Emphasize:
The Wagner Act’s strong support of unionization gave unintended bargaining power
to unions with respect to an employer’s hiring practices.
That there are situations where to apply for a prospective job one has to join the
union and this is referred to as closed shops.
That the right-to-work laws prohibits agreements requiring membership in a labor
organization as a condition of continued employment of a person who was not in the
union when hired.
D. Suits Against Unions
Emphasize:
fair representation.
Sidebar 22.10—“Making a Point: Union Protests with a Giant Rat”
Cases for Discussion:
1. The Pilots Union negotiated a back-to-work agreement that permitted the airline to
treat striking pilots and non-striking differently. The striking pilots sued the union
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severance pay, or retaining their individual claims and becoming eligible to return
to work only after all the settling pilots had been reinstated.
Issue: Did the union breach its duty?
S.Ct. 1127 (1991).
2. A state wrongful death suit was filed against the Deceased Miners Union on a
theory of negligence in connection with nine safety inspections.
Issue: Are tort claims in state court preempted by § 301 of Taft-Hartley?
be avoided by characterizing the Union’s negligence as a state-law tort. As a result,
the Union is not subject to suit under § 301. Negligence is not a breach of the duty
of fair representation. United Steelworkers of America, AFL-CIO-CLC v. Rawson
et al., 110 S.Ct. 1904 (1990).
3. An employee sued his union for failing to represent him in a dispute with the
employer. In his federal court case, he sought a trial by jury.
Issue: Is he entitled to one?
4. An employee was forced to leave work because of poor health. He recuperated and