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Add. Case: Auciello Iron Works v. NLRB (S. Ct., 1996)--Auciello and its employees’ union
came to a collective-bargaining agreement. After the agreement was announced, Auciello
disavowed it because of its “good-faith doubt” that a majority of its employees no longer
supported the union. The union moved to have the agreement enforced, which the NLRB
supported.
Decision: It is an unfair labor practice for Auciello to renounce the agreement after bargaining
Add. Case: Holly Farms v. NLRB (4th Cir., 1995)--Some Holly Farms (bought by Tyson Foods)
operations were subject to a union organizing campaign. The NLRB found Holly Farms
committed unfair labor practices, including threatening to fire workers and eliminate some
operations if the workers voted to unionize. Workers who asked other workers to sign
authorization cards were fired. Employees who passed out union literature in the company
parking lot were arrested. The company refused to bargain with the union when it won the
election and changed some work conditions. The company claimed the election was void
because the Holly Farm units were integrated into larger Tyson operations. Holly Farms
appealed.
Decision: NLRB findings are conclusive “if supported by substantial evidence on the record
considered as a whole.” Once the union won, it was the certified bargaining agent. While there
was a change in company ownership, since there was “substantial continuity” between the two
Mandatory Subjects of Bargaining—Parties must bargain in good faith over certain items
specified by the NLRA. These items include: wages, insurance plans, vacations, retirement plans,
work hours, termination procedures, layoff procedures, grievance procedures, and drug testing,
among others. In collective bargaining, either side may insist on its position and back its
insistence with a strike or lockout, and not violate the NLRA. In the event of a negotiating
stalemate, an arbitrator, or other negotiator, may be called in.
Add. Case: First Natl. Maintenance Corp. v. NLRB (S. Ct., 1981)--First National (FN) was a
commercial cleaning firm that had a dispute with a large customer and stopped providing
cleaning services for the customer’s buildings. As a result, FN had less work and had to cut its
work force, which was unionized. The union complained to the NLRB that FN had violated its
collective bargaining agreement by failing to negotiate with the union before making the
decision that resulted in lost jobs for union members. The NLRB and the Court of Appeals held
the union was correct: loss of jobs is a mandatory subject of good faith bargaining, and FN
failed to bargain. FN appealed.
Decision: Reversed. Congress gave the NLRB discretion to determine what subjects of
mandatory bargaining are, but did not intend unions to become “an equal partner in the running
of the business enterprise in which the union’s members are employed.” Thus, some subjects are
Arbitration Clauses—Grievance arbitration clauses and mechanisms are typically defined in
collective bargaining agreements. Disputes concerning agreements reached in collective
bargaining are typically resolved by an internal grievance procedure. Unsatisfied parties may ask
that an outside labor arbitrator hear a grievance. Most collective bargaining agreements (90%)
contain such clauses, which are encouraged by the federal courts because they keep such
disputes out of a congested court system. Grievance is an issue under union control, not the
control of individual workers.
CASE: Teamsters Local Union No. 523 v. NLRB (10th Cir., 2009)—Interstate Brands makes
and distributes bakery products. The employer consolidated a mix of distribution systems into
one, which meant that the union would now represent all workers—some parts of the distribution
system were non-union previously. Rammage had worked for 15 years before the consolidation.
The union put him at the bottom of the seniority list, giving preference to union members.
Rammage was “endtailed” which was a demotion—inferior routes with lower pay. He
complained to the NLRB about the union action. The NLRB held for him. The union appealed.
Decision: This was clear discrimination against Rammage due to his previous non-union status.
Questions: 1. Why would the union discriminate against Rammage?
To reward those who were loyal to the union already and send a signal out to the labor force that
2. Why would the employer go along with the union on this issue?
The union could cause problems for the employer in many ways and there may have been no
cost to the employer anyway—one sales rep or another was going to get a particular route, and
Add. Case: Major League Baseball Players Assn. v. Garvey (S. Ct., 2001)--Former ML
Baseball player Steve Garvey filed a claim for $3 million from a $280 million fund established
by owners to compensate players for income lost due to collusion among owners in the 1980s.
The fund was under the collective bargaining agreement and the allocation of the money was
subject to labor arbitration. The arbitrator rejected the evidence presented by Garvey and
awarded him nothing. He appealed. The appeals court reversed for Garvey. The players
association appealed.
Decision: Reversed. “Judicial review of a labor-arbitration decision pursuant to such an
agreement is very limited. Courts are not authorized to review the arbitrator’s decision on the
merits despite allegations that the decision rests on factual errors or misinterprets the parties’
Add. Case: Boston Medical Ctr. v. Service Employees Intl. Union (1st Cir., 2001)--Hartney
was the nurse on duty caring for an infant at the Boston Medical Center (BMC). The baby died
while under Hartney’s care. Two nursing supervisors reviewed the matter. They concluded that
Hartney “engaged in serious substandard nursing practices.” BMC fired her. Her union
submitted to arbitration a grievance. The arbitrator found that she had been fired without just
cause and ordered her reinstated. BMC sued to vacate the award. District court vacated the
award as it violated public policy in Massachusetts that favored competent nursing practice and
because the arbitrator exceeded her authority. The union appealed.
Decision: Reversed. The arbitrator’s interpretation of the CBA was reasonable since it did not
provide for discharge of employees in such instances. Courts can set aside an arbitrator’s
interpretation of a bargaining agreement only in rare instances. Massachusetts does not have an
Concerted Activities—Concerted activities are actions that help employers or unions back up
their positions. Examples include: strikes, lockouts, and other actions that bring economic force
to bear on the other party. Certain concerted activities are protected by law because they help
parties effectively support bargaining demands.
Protected Activities—Under the NLRA, employees may engage in concerted activities for
mutual protection or aid. Concerted activities often involve union organizing efforts. An example
of a concerted activity that was protected, but did not involve a union, is NLRB v. Washington
Aluminum Co. Workers left because their plant was extremely cold. The workers were fired by
the company, which claimed they had to make specific demands before they could walk out of
work. The Supreme Court held that the workers were protecting themselves from intolerable
working conditions, which constituted a concerted activity, protected by the NLRA. The
company could not fire them.
Add. Case: Molon Motor and Coil v. NLRB (7th Cir., 1992)--Some workers assembled in the
breakroom and refused to work until Molon agreed to a wage increase; management pledged to
consider the matter. A letter to employees then said that competition and rising costs prevented a
pay raise. Twenty-two workers staged a work stoppage, demanding a pay raise. Managers
repeated the position. After five hours, the workers were threatened with dismissal if they did not
get back to work. The police were called to escort the fired workers outside. The NLRB ordered
the workers reinstated and back wages paid. Molon appealed.
Decision: Affirmed. “The concerted activity at issue here (i.e., an on-the-job work stoppage) is
a form of economic pressure entitled to protection” by the NLRA. The courts must balance that
right against the employer’s property rights. The reason for firing the workers was their
Add. Case: Blue Circle Cement v. NLRB (5th Cir., 1995)--Blue Circle fired Saunders at its
Tulsa, Oklahoma plant when its manager found him using a company photocopier to copy a
Greenpeace article on “sham recycling.” Blue Circle was seeking regulatory approval for a
recycling project at the time. Saunders was fired for improper use of company property and for
working against the company’s interests. The NLRB ruled that Saunders’ action was protected
activity.
Decision: Affirmed. The courts must defer to plausible interpretations of the facts as found by the
Unprotected Activities—Workers who engage in threats or acts of violence during the course of a
concerted activity are not protected by the NLRA, and may be fired or disciplined by their
employer. However, workers may not be fired for disloyalty if their actions are protected
concerted activities.
Strikes and Boycotts—An action by a union that attempts to force others to stop doing business
with another employer not directly involved in the primary labor dispute. Unlike primary
boycotts (strikes or other concerted action against the employer of the employees for whom the
union is the collective bargaining agent), secondary boycotts are strictly limited by the NLRA.
Examples of illegal activities include: striking against, or refusing to handle merchandize of, an
employer other than the primary employer; threatening persons engaged in commerce in order to
spread the labor dispute beyond the primary employer. The NLRB held that employees of a food
manufacturing company could not picket banks in an effort to get them to pressure the food
company to settle.
Add. Case: ABX Air v. Airline Professionals Assn. (6th Cir., 2001)--Airborne Express (ABX) is
an air freight carrier. Under its collective bargaining agreement (CBA), pilots bid for open flying
times not covered in the regular monthly schedule. Such flights, which earn extra pay, are
awarded on the basis of seniority. The union and ABX were contesting the interpretation of
provision of the CBA. In an effort to force the company to resolve matters, the union asked all
pilots not to bid on open flying times. Of the 617 open-flying times available the next month, only
13 were bid on; those pilots reported were harassed by union members. ABX claims it lost
several large jobs due to the lack of pilots and filed a complaint against the union for an illegal
strike. The court held that this was an illegal strike. While it denied monetary damages to the
company, the court held that it could enjoin the union in the future. The union appealed.
Decision: Reversed. The union’s action was not an illegal strike. The union promoted the
concerted action as a way to pressure ABX to resolve various disputes between the parties on
Add. Case: UAW v. Gaston Festivals (4th Cir., 1995)--A company was contracted to run a
municipal festival. A union was denied booth space at the festival, from which it would distribute
literature on its “Buy American” campaign. The union sued, claiming it had a right to have
space at the festival. District court dismissed the suit. Union appealed.
Decision: Affirmed. The organization and management of a municipal festival is not within the
functions traditionally and exclusively exercised by the government. Hence, even if a public park
Employer Economic Responses—Employers may use certain activities to back up their
bargaining positions. For example, employers may lockout employees, refusing to let them work
until disputes with their union are settled. If an employer has a bad intent when it uses a lockout,
the lockout will be illegal. Employers may not hire new workers during a lockout; lockouts must
be defensive in response to a strike, sitdown, or some other activity destructive to the plant.
Add. Case: NLRB v. Greensburg Coca-Cola Bottling (3rd Cir., 1994)--Greensburg was
negotiating a new CBA with the union that represented full-time employees in warehouse
operations. The two sides fought over whether part-time employees would be covered by the
agreement. Those workers had not been covered before. After a year of negotiations (continuing
to operate under the old agreement), Greensburg broke-off and locked out employees in the
bargaining unit. The union filed unfair labor charges, claiming the lock out was over a
non-mandatory subject of bargaining; that is, the employer made the size of the bargaining unit
—the issue of the part-time workers—a mandatory subject, when it is not by law. NLRB held for
union.
Decision: Reversed. The record shows, contrary to the NLRB findings, that the union wanted
“full-time plant employee” to include part-time workers; hence the company did not use a
non-mandatory subject to force a problem that allowed the lock out. The company did not try to
Add. Case: Diamond Walnut Growers v. NLRB (DC Cir., 1996)--Diamond processes walnuts.
Its unionized workforce had permanent employees plus seasonal hires. At the height of the
season, the union called a strike to try to force Diamond into a new CBA. Diamond hired
replacement workers, most of whom became permanent. The strike was bitter and violent. Two
years after the strike began, there was a campaign to decertify the union. Before that election,
union leaders announced that they would end the strike and return to work, but they would talk
to the workers in the plant about why they should vote for the union. Diamond was concerned
that the union might disrupt operations. The union workers were assigned jobs where they were
supervised and could not move around freely. They campaigned for the union while at work up
until the day of the election, which the union lost, when they resigned. They filed an unfair labor
practice complaint with the NLRB for not returning the workers to their regular jobs. The NLRB
held for the workers; Diamond appealed.
Decision: Reversed. Diamond had a legitimate and substantial business reason for placing the
returning union leaders in supervised positions rather than in the higher paid jobs for which
Replacement Workers—In recent years, companies have hired non-union workers to replace
striking union members. If a collective bargaining contract has expired, and a union strikes, the
employer may hire whomever it wishes. In some cases, strikes last so long that old unions
disappear or lose much strength because of the presence of new hires and crossovers (union
members who cross picket line).
Add. Case: TWA v. Indep. Fed. of Flight Attendants (S. Ct., 1989)--After two years of
bargaining under the terms of an expired contract, the flight attendant’s union at TWA called a
strike. The airline announced that it would continue to operate and would hire replacement
workers. The airline welcomed striking workers to return to work. More than 1,000 flight
attendants continued to work and the company hired 2,350 new workers. After the strike was
settled, the company recalled approximately 1,200 of the 3,800 workers who remained on strike.
The union sued, alleging unfair labor practices for hiring new workers and unfair labor
practices for failing to rehire/recall those flight attendants who had more seniority than the new
hires. The district court found for the airline. The Court of Appeals reversed, and held for the
union. The airline appealed.
Decision: The NLRA does not require employers to displace new hires and crossover workers
when a strike is ended. An employer is not required to layoff junior crossover employees or
Add. Case: Coronet Foods v. NLRB (DC Cir., 1992)--Coronet’s trucking department was
unionized in Feb. Coronet had threatened to close the department if the union was accepted. In
March, the company announced that it was closing the department, which was done in April, and
Coronet contracted out its food distribution work. The NLRB held this to be unfair labor practice
by Coronet for closing the trucking department.
Decision: Affirmed. Coronet could not close the trucking department in retaliation for employees
engaging in union organizing activities. The court upheld the NLRB order requiring
Discussion Question
Most states do not restrict testing of job applicants. A few states, like Minnesota, only allow
applicants to be tested if they are offered a job. More common are requirements that the drug test
procedure be of reasonable quality, are secure, and the applicant could request another test.
Case Questions
1. The Tennessee high court upheld the jury verdict. It was within the jury’s discretion to find
that the fact was that the drivers refused to drive the truck they were assigned because they did
2. (answer on Internet for students) Certified question answered by the Virginia supreme court.
The public policy exception to the employment-at-will doctrine does not apply to a common law
wrongful termination claim by an employee who alleged that she was terminated, in violation of
3. No case. Even though the transit authority had no probable cause with respect to her (that is,
she manifested no signs of impaired ability to drive), they had the right to require the fluids
4. (answer on Internet for students) Yes they could sue for intentional tort. Workers
compensation makes employers immune from tort suits by employees, in Washington (as in most
states) except in case of a “deliberate injury.” Since the employees contended that there was
knowing exposure to toxic chemicals for several years, they could have a claim for deliberate
injury that would allow tort suit. “Employers who engage in such egregious conduct should not
5. An employee’s suicide does not come within the scope of the workers’ compensation statute,
6. The court found the employer had established that the employee was fired because of
negligence in the accident, rather than because of his union activity. The employer has the right
7. (answer on Internet for students) The fictional film in question, “And Women Must Weep”
showed alleged risks of unionization. The court noted the film was high quality, professional
anti-union propaganda supposedly based on true stories. Managers told the workers that what
happened in the film could happen at their company if they unionized. It showed violence and
8. State wins; the dancers are employees. They are subject to the right of control by the owner
of the club where they perform. The club instructed them on what they could not do with respect
9. There is no general obligation to take back workers who were on strike and were replaced
Ethics Question
It is not clear that there is an ethical issue. A sensible, and perhaps ethical, decision would be to
build the facility expected to generate the highest profits over time, which would maximize
benefits of the owners of the firm as well as provide job security for workers through time,
whether the plant employed more lower wage workers or fewer highly skilled highly paid
Essay Questions from Cases:
The NLRB issued a rule that most businesses would have to post a notice advising employees of
their right to form or join a union. Failure to post the notice would be an unfair labor practice.
Employers appealed the decision, claiming that the NLRB had no such authority and that the rule
violated the First Amendment because it was forced speech. Do you think the rule would stand?
National Assn. of Manufacturers v. NLRB, --- F.3d ---, D.C. Cir. (2013)]
Answer: The NLRB’s excuse was that only 7.3% of the private workforce in unionized, which
means they must not know their rights, and that most immigrants are not aware of unionization
Aladdin Gaming runs a casino in Las Vegas that was the target of a unionization effort. During a
lunch break in the employee dining room, union organizers approached people who worked in
the dining room and asked if they would sign union cards. Seeing that, the head of human
resources interrupted the discussion and told the dining room workers that they should get all the
facts before they signed such cards. A conversation occurred discussing various issues related to
Affirmed. Rulings of the NLRB are due judicial deference as long as the ruling is rational and
consistent with the NLRA. The NLRB properly considered the coercive nature of the incident
Internet Assignment
National Labor Relations Board: www.nlrb.gov/
U.S. Department of Labor:
www.dol.gov/
Occupational Safety and Health Administration: www.osha.gov/
The National Labor Relations Board website provides information about its decisions. The
Department of Labor and OSHA websites feature details about labor and employment law issues
respectively.
