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Chapter 14 - Employment Law III: Labor—Management Relations
Supplementary Materials
I. Appropriate Bargaining Unit (p. 616)
By a unanimous vote, the U.S. Supreme Court approved a 1989 NLRB policy dividing workers into
eight collective bargaining units (e.g., one for nurses and one for technicians) for private hospitals
throughout the nation. The policy marked the first time that the NLRB had specified industry-wide units
via rule-making. The normal practice had been to establish bargaining units on a case-by-case basis.
Presumably the policy will expedite union organizing since the various units now know that they need
not seek the support of workers outside their unit in order to successfully organize. See American
Hospital Association v. NLRB, 59 Law Week 4331 (1991).
Supplementary Cases
Hartman Brothers Heating & Air Conditioning v. NLRB, 280 F. 3d 1110 (7th Cir.
2002) (See Appropriate Bargaining Unit, p. 616)
Syllabus
Dispute arose when Hartman discharged one salt and refused to hire another. The issue on appeal is
whether a salt may lie to get a job. Here, Starnes stated on his job application that he had been laid
off, when he had actually taken a leave of absence. If he had disclosed that he had taken a leave of
absence from a much better paying job, “the company would have smelled a rat.” An Indiana law
makes it a crime to “knowingly or intentionally make[] a false or misleading written statement with
intent to obtain … employment.” The court held that if the “lie concerns merely his status as a salt,
union organizer, or union supporter and not his qualifications for the job,” then it is not actionable. If the
state law were interpreted to permit an employer to reject an applicant on the basis of a lie about salt
status, it would be preempted by the NLRA. The Board was entitled to find that Hartman had
committed an unfair labor practice.
National Labor Relations Board v. Town & Country Electric, Inc., 516 U.S. 85
(1995) (See Appropriate Bargaining Unit, p. 616)
Syllabus
Town & Country Electric, a nonunion contractor, wanted to hire several licensed Minnesota
electricians. It refused to interview union applicants and quickly dismissed the one union applicant it
did hire. The union filed a complaint with the NLRB and both an ALJ and the NLRB ruled in favor of the
employees. The 8th Circuit reversed, holding that the NLRB had improperly interpreted the term
“employee” in the statute.
The issue is whether an individual who is paid by a union to be an organizer can also be an
“employee” within the meaning of federal labor law and, therefore, entitled to protection against
discrimination on the basis of their union membership and activities. The Court found the language of
the NLRA itself suggests a broad reading of the term “employee” and at least one provision in the Act
would be substantially meaningless if no one could concurrently be paid by a union and qualify as an
“employee.” Town & Country argued that under general agency law, one agent could not fulfill the duty
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Chapter 14 - Employment Law III: Labor—Management Relations
of loyalty to two principals whose interests were themselves in conflict. The Court did not find that
argument persuasive, indicating that the employer could still control the employee with regard to the
ordinary tasks of working. Ordinary union organizing activity is specifically protected by the NLRA,
whether the actor is being paid or volunteering time to the endeavor. The “harm” that “salts” might
cause a company as employees are no different than the harm any other employee could do. And
most of the harms Town & Country complained of could be remedied in a manner other than refusal of
employment. Thus, the Court found the term “employee” did not exclude paid union organizers.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) (See Threats of Reprisal or
Force, p. 619)
Syllabus
In Nos. 573 and 691, unions waged organizational campaigns, obtained authorization cards from a
majority of employees in the appropriate bargaining units, and demanded recognition by the
employers. The employers refused to bargain on the ground that the cards were inherently unreliable,
and carried out vigorous anti-union campaigns. In one instance the union did not seek a representation
election but filed unfair labor practice charges against the employer; in a second, an election sought by
the union was not held because of unfair labor practice charges filed by the union as a result of the
employer's anti-union campaign; and in the third, an election petitioned by the union and won by the
employer was set aside by the NLRB because of the employer’s pre-election unfair labor practices. In
each instance the NLRB found that the union had obtained valid authorization cards from a majority of
the employees in the bargaining unit and was thus entitled to represent the employees for bargaining
purposes; and that the employer’s refusal to bargain, in violation of section 8(a)(5) of NLRA, was
motivated, not by a “good faith” doubt of the union’s majority status, but by a desire to gain time to
dissipate that status. The NLRB ordered the employers to stop their unfair labor practices, offer
reinstatement and back pay to employees discriminatorily discharged, and to bargain with the unions
on request. The Court of Appeals for the Fourth Circuit upheld the NLRB’s findings as to violations of
sections 8(a)(1) and (3), but declined to enforce the orders to bargain, holding that the Taft-Hartley
amendments to the Act withdrew the NLRB’s authority to order an employer to bargain under section
8(a)(5) on the basis of cards, in the absence of NLRB certification, unless the employer knows,
independently of the cards, that there is in fact no representation dispute. The court held that the cards
were so inherently unreliable that their use gave the employer an automatic good faith claim that such
a dispute existed, for which an election was necessary.
In No. 585, after the union announced to the employer that it held authorization cards from a majority
of the bargaining unit, and the employer claimed it had a good faith doubt of majority status, the union
petitioned for an election. From the time the employer first learned of the union's drive until the
election, the company’s president talked and wrote to the employees. The NLRB stated that the
communications “reasonably intended to convey … the belief or impression that the selection of the
union in the forthcoming election could lead [the company] to close its plant, or to the transfer of
weaving production, with the resultant loss of jobs to the wire weavers,” and constituted a violation of
section 8(a)(1). The NLRB set aside the election because the employer “interfered with the exercise of
a free and untrammeled choice in the election,” found that the union had a valid card majority when it
demanded recognition, and that the employer declined recognition in order to gain time to dissipate
that majority status in violation of section 8(a)(5). The employer was ordered to bargain on request.
The Court of Appeals for the First Circuit sustained the NLRB’s findings and enforced its order.
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Chapter 14 - Employment Law III: Labor—Management Relations
The Supreme Court held:
1. To obtain recognition as the exclusive bargaining representative under the Act, a union has not
been required, prior to or since the Taft-Hartley amendments, to obtain certification as a winner of
an NLRB election; it can establish majority status by possession of cards signed by a majority of
the employees authorizing the union to represent them for bargaining purposes.
2. Authorization cards can adequately represent employee desires for representation and the
NLRB’s rules for controlling card solicitation are adequate safeguards against union
misrepresentation and coercion where the cards are clear and unambiguous on their face.
3. The issuance of a bargaining order is an appropriate remedy where an employer who has
rejected a card majority has committed unfair labor practices which have made the holding of a
fair election unlikely, or which have undermined a union’s majority, caused an election to be set
aside, or made the holding of a fair rerun election unlikely.
4. An employer’s free speech right to communicate with his employees is firmly established and
cannot be infringed by a union or by the NLRB, and section 8(c) merely implements the First
Amendment by requiring that the expression of “any views, argument, or opinion” shall not be
“evidence of an unfair labor practice,” so long as such expression contains “no threat of reprisal or
force or promise of benefit” in violation of section 8(a)(1).
No. 585, 397 F.2d 157, affirmed.
Nos. 573 and 691, 398 F.2d 336,337, 339 reversed and remanded.
Trencor, Inc. v. National Labor Relations Board, 110 F. 3d 268 (5th Cir. 1997) (See
Union Persuasion, p. 624)
Syllabus
Trencor refused to bargain with an elected union, alleging that union misconduct tainted the election
and, therefore, its certification was invalid. Trencor complained of three union actions preceding the
election. First, Trencor argued that the Union had conditioned “the receipt of benefits on favorable
election results” by offering to stage the “biggest party in Texas” if the union won the election. The court
found that there was no indication that the offered party was anything more than an inducement to vote
for the union and, thus, Trencor had presented a prima facie case and was entitled to an evidentiary
hearing on the issue.
The court did not agree with Trencor on its other two arguments, however. Trencor objected to the
union listing “guarantees” in flyers that employees’ wages, benefits and working conditions would not
suffer if the union was elected. The court found “unions are permitted to promise the extension of
existing membership benefits to employees.” Finally, Trencor objected to misrepresentation of its
failure to offer certain benefits to its employees in advance of the election (which would have been
illegal if it had so offered). In response, Trencor printed and distributed leaflets that the law prohibited it
from offering such benefits. Some or all of these leaflets were written on by union sympathizers prior to
distribution, but the court found that nevertheless, Trencor had been able to present its views in the
marketplace of ideas in advance of the election, and the employees could judge for themselves the
merits of each side’s arguments.
National Labor Relations Board v. International Van Lines, 409 U.S. 48 (1972)
(See Strikes, p. 630 and Picketing and Boycotts, p. 634)
Syllabus
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Chapter 14 - Employment Law III: Labor—Management Relations
Four employees of respondent refused to cross a picket line formed in connection with a union’s
organization campaign. Respondent thereafter advised the employees that because of their failure to
report to work, they were being permanently replaced, which was not true at the time of the discharges
[that is, permanent replacements had not been hired at that time]. When respondent refused
reinstatement, charges were filed with the NLRB. Concluding that the discharges were unfair labor
practice under the NLRA, and that the employees thereby became unfair labor practice strikers, the
NLRB ordered unconditional reinstatement with back pay. The Court of Appeals reversed that portion
of the NLRB’s order, holding that the employees were not unfair labor practice strikers who were
entitled to unconditional reinstatement, but economic strikers who were not entitled to reinstatement if
the employer had substantial business justifications for refusing to rehire them.
The Supreme Court held that the unconditional reinstatement of the employees was proper since their
discriminatory discharges, prior to the time their places were filled, constituted unfair labor practices
regardless of whether they were economic strikers or unfair labor practice strikers.
TWA, Inc. v. Flight Attendants, 489 U.S. 426 (1989) (See Economic Strikes, p.
631)
Syllabus
Although petitioner airline (TWA) and respondent flight attendants’ union (IFFA) pursued all the
required dispute resolution mechanisms of the Railway Labor Act (RLA), their negotiations over a new
collective bargaining agreement were unsuccessful. The parties bargained over wages and working
conditions but not over the existing agreement’s seniority system, which ensured that the most senior
qualified attendant who bid on a vacant job assignment, flight schedule, or base of operation (domicile)
would obtain it and would be least affected by periodic furloughs. During the IFFA’s subsequent strike,
TWA continued operations by hiring permanent replacements for strikers, by continuing to employ
attendants who chose not to strike, and by rehiring strikers who abandoned the strike, and filled
strike-created vacancies by application of the existing seniority bidding system to all working
attendants. After the strike ended, and pursuant to its pre-announced policy, TWA refused to displace
permanent replacements or junior non-striking attendants (“crossover” employees) with senior full-term
strikers, many of whom were therefore left without an opportunity to return to work. Although a
post-strike arbitral agreement guaranteed that all reinstated full-term strikers would be returned to work
as vacancies arose and with precisely the seniority they would have had if no strike had occurred, the
IFFA filed the instant action contending that, even assuming the strike was economic, the full-term
strikers were entitled to displace the newly hired replacements and the less senior crossover
attendants either under the terms of the pre-strike collective bargaining agreement or under the RLA
itself. The district court denied relief for the most part, but the Court of Appeals, relying on its reading of
the pre-strike agreement and on judicial interpretation of the NLRA, reversed the lower court’s ruling
that the more senior full-term strikers could not displace junior crossovers.
The Supreme Court held that an employer is not required by the RLA to lay off crossover employees in
order to reinstate more senior full-term strikers at the conclusion of a strike. Specifically, the Court
stated:
1. Nothing in the federal common labor law developed under the NLRA, which may provide guiding
precedent in RLA cases, indicates that TWA’s crossover policy is unlawful. In fact, under NLRB v.
Mackay Radio & Telegraph Co., 304 U.S. 333, and its progeny, it is not an unfair labor practice
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Chapter 14 - Employment Law III: Labor—Management Relations
under the NLRA for an employer to refuse to discharge replacement employees in order to make
room for strikers at the end of an economic strike. The IFFA’s argument that the Mackay Radio
rule is inapplicable to junior crossovers because those workers must be treated differently than
newly hired permanent replacements (who, the union concedes, need not be displaced) is
rejected, since full-term strikers at TWA, once reinstated, have lost no seniority either in absolute
or relative terms, and will be able to displace junior flight attendants—whether new hires,
crossovers, or full-term strikers—with regard to future reductions in force, vacancies in desirable
assignments or domiciles, or periodic bids on job scheduling, and since any “cleavage” between
junior crossovers and reinstated full-term strikers is merely the inevitable effect of TWA’s lawful
use of the economic weapons available to it during a period of self-help. NLRB v. Erie Resistor
Corp., 373 U.S. 221, distinguished. To differentiate between crossovers and new hires in the
manner the IFFA proposes would have the effect of penalizing those who exercised their right not
to strike, which is protected both by the RLA and the NLRA, in order to benefit those who did
strike, a result that is not required by the NLRA.
2. TWA’s crossover policy is not forbidden by the RLA itself, which, in fact, provides greater avenues
of self-help to parties that have exhausted the statute’s extensive dispute resolution mechanisms
than would be available under the NLRA. Section 2 Fourth of the RLA—which prohibits carriers
from “influenc[ing] or coerc[ing] employees … not to join … any labor organization”—does not
prohibit the policy, since that section is addressed primarily to the pre-certification rights of
unorganized employees to organize and choose their representatives, with the intent of protecting
the dispute resolution procedures’ effectiveness by assuring that the employees’ putative
representative is not subject to employer control and that neither party will be able to enlist the
courts to further its own partisan ends. Where, as here, the parties have exhausted those
procedures and have reached an impasse, they are free, without threat of judicial involvement, to
turn to any peaceful, self-help measures that do not strike a fundamental blow to union or
employer activity and the collective bargaining process itself. Moreover, as the IFFA concedes,
nothing in the collective bargaining agreement or any post-strike agreement prohibits TWA’s
crossover policy.
3. TWA’s decision to guarantee to crossovers the same protections lawfully applied to new hires was
a decision to apply the pre-existing seniority terms of the collective bargaining agreement
uniformly to all employees. That this decision had the effect of encouraging pre-strike workers to
remain on the job during the strike or to abandon the strike before all vacancies were filled was
simply an effect of TWA’s lawful exercise of its peaceful economic power.
International Longshorement’s Association v. Allied International, Inc., 102 S.
Ct. 1656 (1982) (See Secondary Picketing/Boycotts, p. 634)
Syllabus
On January 9, 1980, the president of the International Longshoremen’s Association (ILA) ordered
members to stop handling cargo going to or coming from the Soviet Union. This action was taken as a
protest against the Soviet Union’s invasion of Afghanistan and was strongly supported by union
members. A United States company that imported Russian dry goods to resell had its business totally
disrupted by the ILA strike. The company filed an unfair labor practice proceeding with the NLRB,
claiming that the Longshoremen were engaged in an illegal secondary boycott.
The district court dismissed the complaint, holding the petitioner’s boycott was a purely political,
primary boycott of Russian goods and thus not within the scope of section 8(b)(4)(B). The Court of
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Chapter 14 - Employment Law III: Labor—Management Relations
Appeals reversed.
The Supreme Court held that petitioner’s boycott was an illegal secondary boycott under section 8(b)
(4)(B).
1. Petitioner’s activity was “in commerce” and within the scope of the NLRA. Its refusal to unload
respondent’s shipments in no way affected the maritime operations of foreign ships, was not
aimed at altering the terms of employment of foreign crews, and did not seek to extend the bill of
rights of American workers and employers to foreign seamen or ship owners. Accordingly, the
longstanding tradition of restraint in applying United States laws to foreign ships is irrelevant.
2. By its terms, section 8(b)(4)(B)’s prohibition against secondary boycotts applies to the facts of this
case. Petitioner’s sole complaint was with the Soviet Union’s foreign and military policy; and
however commendable its objectives might have been, the effect of its action was to impose a
heavy burden on neutral employers. It is just such a burden that the secondary boycott provisions
were designed to prevent.
3. That the specific purpose of petitioner’s action was not to halt business between respondent, its
shipper, and the stevedore, but to free union members from handling goods from an objectionable
source, does not place the action outside the prohibition of secondary boycotts. When a purely
secondary boycott reasonably can be expected to threaten neutral parties at least one of the
objects of the boycott or the statutory prohibition would be rendered meaningless. Neither is it a
defense to the application of section 8(b)(4)(B) that the reason for petitioner’s boycott was not a
labor dispute with a primary employer, but a political dispute with a foreign nation. Section 8(b)(4)
(B) contains no exception for “political secondary boycotts,” and its legislative history does not
indicate that political disputes should be excluded from its scope.
4. That respondent has alleged a violation of section 8(b)(4)(B) does not infringe the First
Amendment rights of petitioner or its members. Conduct designed not to communicate but to
coerce merits little consideration under that Amendment.
Steelworkers v. Sadlowski, 457 U.S. 102 (1982) (See The Bill of Rights of Labor
Organization Members, p. 636)
Syllabus
Petitioner union amended its constitution to include an “outsider rule” which prohibits candidates for
union office from accepting campaign contributions from non-members and creates a committee to
enforce the rule, the committee’s decisions being final and binding. Respondents, including a union
member who had been an unsuccessful candidate for union office before adoption of the outsider rule
and had received much of the financial support for his campaign from sources outside the union, filed
suit against petitioner in federal district court, claiming that the rule prohibited non-members
contributions to finance campaign-related litigation and thus violated LMRDA, which provides that a
union may not limit the rights of its members to institute an action in any court or administrative
agency. The district court found for respondents. The Court of Appeals affirmed, agreeing that the
outsider rule violated the Act. It also accepted respondent’s argument, first raised on appeal, that the
rule violated the “freedom of speech and assembly” provision of LMRDA, giving every union member
the right to his views about candidates in union elections or any business properly before the meeting.
The Court of Appeals rejected petitioner’s argument that the outsider rule was protected by section
101(a)(2)’s proviso, which gives a union authority to adopt “reasonable” rules regarding its members’
responsibilities.
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Chapter 14 - Employment Law III: Labor—Management Relations
The Supreme Court held:
1. Petitioner’s outsider rule does not violate section 101(a)(2). Although it may interfere with rights
Congress intended to protect, it is rationally related to a legitimate and protected purpose, and
thus is sheltered by section 101(a)(2)’s proviso.
a. In light of the legislative history, section 101(a)(2) cannot be read as incorporating the entire
body of First Amendment law so as to require that the scope of protections afforded union
members by the statute coincide with the protections afforded by the Constitution as to a
political election candidate’s freedom to receive campaign contributions. Union rules are
valid under the statute so long as they are reasonable; they need not pass the stringent
tests applied in the First Amendment context.
b. Congress adopted the freedom of speech and assembly provision of section 101(a)(2) in
order to promote union democracy, particularly through fostering vigorous debate during
election campaigns. Although petitioner’s outsider rule does affect rights protected by the
statute and may limit somewhat the ability of insurgent union members to wage an effective
campaign against incumbent officers, as a practical matter the impact may not be
substantial. The record shows that challengers have been able to defeat incumbents or
administration-backed candidates, despite the absence of financial support from
non-members.
c. Petitioner’s purpose in adopting the outsider rule was to ensure that non-members would
not unduly influence union affairs and that the union leadership would remain responsive to
the membership. The policies underlying the LMRDA show that this is a legitimate purpose
that Congress meant to protect. Nor is the rule invalid on the asserted ground that it is not
rationally related to that purpose because the union could have simply established
contribution ceilings, or need not have limited contributions by relatives and friends, or
could have simply required that candidates reveal the sources of their funds. Petitioner had
a reasonable basis for its decision to impose a broad ban seeking to eradicate the threat of
outside influence.
2. Petitioner’s outsider rule does not violate section 101(a) (4)’s right-to-sue provision. The rule
simply does not apply where a member uses funds from outsiders to finance litigation. Neither the
rule’s language nor the debates leading up to its passage indicate that petitioner intended the rule
to apply in such context. Moreover, petitioner’s rule-enforcement committee issued an opinion
stating that the rule’s limitations “do not apply to the financing of lawsuits by non-members for the
purpose of asserting the legal rights of candidates or other union members in connection with
elections.”
Selected Bibliography
Associated Press, “Another Blow on the Chin for Unions,” Waterloo-Cedar Falls Courier, Dec. 5, 1995,
p. B5.
James O. Castagnera, “To Confront or Cooperate? The Lesson of Anthracite Coal,” Labor Law Journal
41, No. 3, March 1990, p. 158.
Lindley H. Clark, Jr., “U.S. Unions Did Too Well for Themselves,” The Wall Street Journal, June 13,
1990, p. A14.
Samuel A. DiLullo, “Secondary Boycotts: Has the Court Gone Too Far or May Be Not Far Enough?,”
Labor Law Journal 40, No. 6, June 1989, p. 376.
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Chapter 14 - Employment Law III: Labor—Management Relations
Thomas R. Donahue, “Protect Workers From Being Replaced',” USA Today, June 13, 1990, p. 10A.
Cory R. Fine, “The Curtain Rises on Eastern Europe,” HR Magazine, 42, no. 1, Jan. 1997, p. 90.
Charles C. Heckscher, The New Unionism (New York: Basic Books, Inc., 1988).
Patt Johnson and David Elbert, “Teamsters Barred from Using Stars and Stripes as Picket Sign,” Des
Moines Register, May 22, 2002, p. 8C.
Richard L. Lesher, “Protect the Right to Hire Replacements,” USA Today, June 13, 1990, p. 10A.
Amy Dockser Marcus and Sonia L. Nazario, “DuPont's Workplace Groups Challenged,” The Wall
Street Journal, March 26, 1991, p. B10.
David M. Rabban, “Can American Labor Law Accommodate Collective Bargaining by Professional
Employees?,” The Yale Law Journal 99, No. 4, January 1990, p. 689.
Anne Ritter, “Are Unions Worth the Bargain?,” Personnel 67, No. 2, February 1990, p. 12.
United Press International, “Study Says Health Benefits are Key Issue in Strikes,” Los Angeles Times,
February 20, 1990, p. D5.
Robert Tomsho, “Employers and Unions Feeling Pressure to Eliminate Two-Tier Labor Contracts,” The
Wall Street Journal, April 20, 1990, p. B1.
Stephen Wermiel, “Supreme Court Upholds Policy Barring Tactic Used to Oust a Striking Union,” The
Wall Street Journal, April 18, 1990, p. A3.
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