Business Law Chapter 14 Unfair labor practice strikes are protected activity

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

*Right-to–work laws: Laws which prohibit union security agreements.

(4) Hiring halls operated by unions also may have the effect of

encouraging membership in the union because employees must go

*Hiring hall: A job-referral mechanism operated by unions whereby unions refer members to prospective

employers.

(5) Preferential treatment for union officers, even though it may

have the effect of encouraging union membership, is justifiable on the

b) Discrimination in Employment to Discourage Union Membership

(1) An employer who refuses to hire, or discharges, lays off, or

c) Strikes as Protected Activity

(1) Strikes are considered “concerted activity” under Section 7 of

the NLRA; however, depending on the condition of the strike, it may or

(2) Unfair labor practice strikes are protected activity under the act.

Strikers may not be fired for going on strike, nor may they be

permanently replaced. An employer may hire workers to replace the

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

Discrimination in Employment to Discourage Union Membership

1) Activity protected under Section 7 includes union organizing activity as well as strikes over

economic issues or to protest unfair labor practices

2) An employer who fires employees for engaging in a union organizing campaign is in violation

of Section 8(a)(3)

d) Strikes As Protected Activity

(1) Strikes by employees are the essence of concerted activity

CASE 14.7 DIAMOND WALNUT GROWERS, INC. V. NLRB

113 F.3d 1259 (D.C. Cir. 1997) (en banc), cert. denied, 523 U.S. 1020 (1998)

Facts: Following the expiration of their collective bargaining agreement, 500 of Diamond Walnut

Growers workers went on strike and the employer hired replacement workers to continue operations. The

strike was very tense, which consisted of a boycott and the distribution of leaflets debasing Diamond’s

work conditions and products. After a year, a representation election was conducted, however, the union

lost and a new election was ordered. Before the second election, three of the striking employers applied to

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

be reinstated, however, the jobs they had previously were unavailable, and therefore, they were placed in

The employer’s justification for placing the three workers as it did was because it was concerned that the

replacement workers might retaliate against the three and that the placements were justified by their

participation in the boycott and the circulation of disparaging leaflets.

Issue: Whether the employer provided an adequate business justification for its refusal to reinstate the

three strikers in their former, or equivalent, positions?

Decision: Under Fleetwood Trailers, once discrimination is shown, the burden shifts to the employer to

explanation.

Economic Strikes

1) Work stoppages by the employees designed to force the employer to meet their

bargaining demands for increased wages or other benefits

Other Strike-Related Issues

1) An employer may not offer incentive or benefits to the replacements or those employees not going

on strike when such benefits are not available to the strikers.

) Employer Response to Strike Activity

a. Just as employees are free to go on strike, employers are free to

*Lockout: An employer’s temporary withdrawal of employment to pressure employees to agree to the

employer’s bargaining proposals.

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

CASE 14.8 NLRB V. BROWN

30 U.S 278 (1965)

Facts: Five employers that were members of a multiemployer bargaining unit, represented by Local 462

of the Retail Clerks International Association (Local 42), operated six retail grocery stores. When the

negotiations to renew the collective bargaining agreement reached an impasse, the union went on strike

against Food Jet, one of the five employers. The other four employers immediately locked out all their

employees represented by the union, declaring that they would be recalled to work once the strike ended

The union filed a complaint with the NLRB over the lockout and hiring of replacement workers. The

NLRB held that the employers violated Section 8(a)(1) and (3) of the NLRA by locking out their regular

employees and using temporary replacements to carry on business. The Court of Appeals disagreed and

refused to enforce the Board’s order. The NLRB then appealed to the Supreme Court.

Issue: Have the employers violated Sections 8(a)(1) and (3) of the NLRA by locking out their regular

employees and hiring temporary replacements during the strike against one of the employers in the

multiemployer bargaining unit?

Decision: In order to find a Section 8(a)(3) violation there must be discrimination that would discourage

union membership and antiunion intent is also required. In this case the use of temporary replacement in

a) Plant Closing to Avoid Unionization

(1) A total shutdown of a business, even if done for anti-union

motivation, was not an unfair labor practice, but that a partial shutdown,

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

*Runaway shop: Situation in which an employer closes in one location and opens in another to avoid

unionization.

THE WORKING LAW:

NLRB Office of the General Counsel Issues Consolidated Complaints Against McDonald’s Franchisees

and their Franchisor McDonald’s, USA, LLC as Joint Employers

The National Labor Relations Board Office of the General Counsel issued complaints against

III. Other Unfair Labor Practices

A. Employer Reprisals Against Employees

1. Section 8(a)(4) prohibits an employer from discharging or otherwise

B. Excessive Union Dues or Membership Fees

1. Section 8(b)(5) prohibits a union from requiring excessive dues or membership

C. Featherbedding*

1. Section 8(b)(6) makes it a ULP for a union to attempt to featherbed an employer.

*Featherbedding: The practice of getting paid for services not performed or not to be performed.

A. Remedies for Unfair Labor Practices

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

not to comply with the order, the Board will petition the appropriate federal court of

B. Reinstatement

1. When an employee has been unlawfully discharged, the Board has the authority

to order reinstatement with back pay under Section 10(c), except in the case of an

employee discharged “for cause.”

CASE 14.9 ABF FREIGHT SYSTEM, INC. V. NLRB

510 U.S. 317 (1994)

Background: Michael Manso, was a causal dockworker at petitioner ABF Freight’s (ABF’s) truck

terminal in Albuquerque, New Mexico. One day Manso arrived a few minutes late to work. After

Manso’s tardiness, ABF instituted a lateness policy, providing that, an employee that is late to work more

than two times would be discharged. After this rule was set up, Michael Manso was late again. This time

he arrived an hour passed his scheduled time, and then falsely lied about why he was late to work. He

reiterated the same excuse before the NLRB during a hearing. Despite, Manso’s dishonesty, the Board

ordered reinstatement with back pay.

Issue: Whether Manso’s conduct should have precluded the Board from granting him such a relief?

Decision: The Court found that the Court of Appeals had properly affirmed the Board’s order because a

ANSWERS TO CASE QUESTIONS

1. ABF said that the third discharge of Manso was because he was late for work without a legitimate

2. The NLRB disagreed with the ALJ regarding the third discharge, and held that Manso was

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

3. The Supreme Court held that the NLRB order here was within the broad remedial discretion given it

1. There are some instances when the Board may seek front pay* instead of

reinstatement.

a) Front pay is appropriate where the ULP has impaired the ability of the

*Front pay: A monetary award for loss of anticipated future earnings because of the ULP.

A. When calculating back pay, affected employees are required to mitigate their damages,

i.e. finding other, equivalent, employment.

Back Pay

Extraordinary Remedies

Where an employer that was found guilty of “egregious and pervasive violations” of the NLRA,

over a period of 10 years, including two injunctions under Section 10(j) of the NLRA, and having been

ANSWERS TO END OF CHAPTER PROBLEMS

QUESTIONS

1. The effect of S. 7 is to protect employees in their actions to unionize, or to refrain from joining

unions. Section 7 protects conduct that is concerted and for purposes of collective bargaining or

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

2. An employer may place reasonable restrictions on soliciting activities by employees⎯restricting

such activities, in the absence of exceptional circumstances, to non-working areas and non-

3. Section 8(a)1 doesn’t require motive for a violation; any conduct with the natural tendency to

4. Union security provisions are agreements between employers and unions that require the

employees to join the union after completing a probationary period of at least 30 days (a union

5. An economic strike is protected activity as long as it is not in violation of the NLRA or the

collective agreement; employees who go on strike may not be discharged or disciplined for going

on strike. However, economic strikers may be permanently replaced by the employer, and they

CASE PROBLEMS

6. The NLRB held that the employer violated Ss. 8(a)1 and 3 by discharging Falcone for engaging

in concerted activity; the Board held that she had acted with the authority of the other employees,

7. The Board held that the employer, by laying off those employees it believed were likely to honor

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

8. The issue here involves the effect of the unfair labor practice of firing the union steward. If the

firing of the steward influenced the employees in their decision to withdraw from the union, then

9. The Board held that the filing of a groundless suit against the picketing and the signs was a

10. The employer’s actions here allegedly violate S. 8(a)1 and S. 8(a)3. The picture taking and the

comments about firing the employees may violate S. 8(a)1⎯the conduct certainly would have the

natural tendency to restrain, coerce or interfere with the employees’ S. 7 rights, which include the

right to organize or join a union. The discharge, if it resulted from anti-union motivation, would

11. Nicole Wright-Gore’s activities were deemed to be protected, concerted activities under the

NLRA. The court reasoned that, even though “an employee’s self-interest catalyzed her decision

12. The Board agreed with the administrative law judge that the employer’s confidentiality rule was

unlawfully overbroad. The Board found that employees would reasonably believe that prohibiting

disclosure outside the company of, among other broad categories, “personnel information and

documents” prohibited them from discussing wages and other terms and conditions of

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

13. Strodel’s comments were within the scope of protection afforded by S. 8(c), and did not constitute

14. The employees’ conduct was held to be concerted because they acted together in their refusal to

work overtime⎯it was the “logical outgrowth” of the workers’ other concerted activity, even if

15. The employer has violated S. 8(a)1 by the threats to close and the implication that the employees

were under surveillance as to their discussions. As well, the limits on soliciting and discussion by

HYPOTHETICAL SCENARIOS

16. Actual coercion or restraint of the employees is not required for a Section 8 violation. All that is

necessary is that the employer engage in conduct that the Board believes has the natural tendency

17. The employee should be treated as any other employee. If other employees have acted so

18. Yes, Decker’s meeting violated the NLRA. It would be a section 8(a)(1) violation to interrogate

employees regarding union sympathies, without proper cause. Decker’s promise to “get to the

Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 14

19. Employers may not restrict “visual–only” solicitations such as hats, buttons, and so forth, in the

absence of exceptional circumstances. In Beth Israel Hospital v NLRB, the Supreme Court upheld

20. Section 8(a)(3) (and section 8(a)(1)) makes it illegal for a union to cause or attempt to cause an

employer to discriminate against an employee because the union is unhappy with the employee’s