Chapter 4 THE NATIONAL LABOR
RELATIONS ACT
Labor & Employment Law 14
Case Questions
4.1, NLRB v. Jones & Laughlin Steel Corp., p. 61
1. (Q.) What action did the Board take after investigation of the above charges?
2. (Q.) Did the Court of Appeals uphold the Board? On what ground?
3. (Q.) Does the NLRA compel agreements between employers and employees?
4.2, NLRB v. Catholic Bishop of Chicago, p. 71
1. (Q.) Is religious training mandatory at all of the schools in question?
Students may be asked whether the outcome of the decision should be the same if the
lay teachers, a majority of whom voted for union representation, taught exclusively
academic as opposed to religiously oriented subjects. The focus of the Court in this case
indicates that it would like to steer clear of possible conflict with the First Amendment
as explained in the following questions and answers.
2. (Q.) Does the Court see inevitable church-state entanglements if the Board were allowed to
exercise jurisdiction over teachers in church-operated schools?
(A.)
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3. (Q.) Did Congress express the clear intent to bring teachers in church-operated schools
within the jurisdiction of the NLRA?
(A.) No. The Court majority states that in the absence of such a clear expression of
4.3, NLRB v. Town & Country Electric Inc., p. 82
1. (Q.) What factors did the Board rely on in making its decision?
(A.)
2. (Q.) Did the Supreme Court approve t
(A.)
that the Board has a degree of legal leeway when it interprets its governing statute.
3. (Q.) Did the Supreme Court offer direction to employers on how to deal with problems that
could arise when dealing with paid union organizers as employees?
It may be expected that employers will develop and strictly enforce no outside
to this decision of the Supreme Court. With such a policy, each employer would screen
investigation uncovers a second job, it would lead to the termination of the individual
for falsification of the employment application. If it is shown, however, that the
employer initiated the no outside employment rule because of its antiunion animus,
then such a policy would be in violation of the NLRA.
4.4, NLRB v. Yeshiva University, p. 83
1. (Q.) State the issue before the Supreme Court.
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(A.) The issue before the Supreme Court was whether full-time faculty members at Yeshiva
2. (Q.)
excluded from the protection and rights of the NLRA.
3. (Q.) Identify the faculty powers and functions
(A.)
4. (Q.)
faculty?
(A.) –
Students may be asked to compare the administration-faculty structure at their college
are managerial employees. By some university standards the Yeshiva faculty possessed
an unusual amount of power. Also, it should be made clear to students that the Board
does not have jurisdiction over public colleges and universities.
4.5, San Diego Building Trades Council v. Garmon, p. 88
1. (Q.) Why did the NLRB decline jurisdiction?
(A.) The NLRB declined jurisdiction because the amount of interstate commerce involved
2. (Q.) According to the Court, to which body did Congress entrust the administration of
national labor policy?
3. (Q.)
federal law?
(A.)
Chapter 4 Railway and Airline Labor Relations Law
4. (Q.) Does the failure of the Board to define the legal significance under the NLRA of a
particular activity give the states the power to act?
(A.) The failure of the Board to define the legal significance under the NLRA of a particular
4.6, Golden State Transit Corp. v. Los Angeles, p. 90
1. (Q.) Summarize the essential facts of the case.
(A.) The city conditioned the taxicab franchise renewal o
2. (Q.)
(A.) Yes. Congress intended that the parties to a labor dispute should be free to use their
4.7, Chamber of Commerce v. Brown, p. 91
opinion?
(A.) Section 8(c) of the Act protects the parties freedom of speech and expression with the
2. (Q.) Preemption under the Machinists rule forbids both the NLRB and the states from
d and left to be controlled by
Machinist rule apply to the present
case?
(A.) Under the Machinist rule congressional intent to shield a zone of activity from
3. (Q.) Does AB 1889 impose an equal restriction on employer and union speech about
unionization?
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Labor & Employment Law 18
(A.)
4.8, St. Barnabas Hospital and Local 1957, SEIU, p. 93
1. (Q.) Must the Regional Director follow the precedents established by the Board Members, or
may a Regional Director from time to time make a new and novel representation ruling
with a regional perspective for consideration by the Board. Should the ruling be
appealed?
2. (Q.) Read the Direction of Election statement of the Regional Director. Note how it deals
with the appropriate ba
Regulations on eligibility to vote. What other important pre-election considerations are
(A.) In addition to eligibility rules and appropriate bargaining units, note that the footnotes
4.9, American District Telegraph, p. 96
1. (Q.) Whom did the union seek to represent in one bargaining unit?
2. (Q.) Discuss the differences between the various classifications of service persons.
(A.) The S-2 service persons worked irregular hours, wore uniforms, carried weapons, and
4.10, NLRB v. Hendricks County Rural Electric Membership Corp., p. 97
1. (Q.) Did Hendricks argue before the Supreme Court that all employees who may have
access to confidential business information are impliedly excluded from the definition
of employee in Section 2(3)?
(A.) Yes. Hendricks argued that all employees who may have access to confidential business
2. (Q.) -nexus test?
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(A.) -nexus test, as set forth in the Ford Motor Co. decision, is that the Board
3. (Q.) excluding from bargaining units certain confidential
employees under its labor-nexus test?
(A.)
4. (Q.) Was Congress under the impression that the NLRA did not cover all confidential
employees when it passed the Taft-Hartley Act in 1947?
(A.) A footnote to the NLRB v. Bell Aerospace decision suggested that Congress when it
4.11, Bonanno Linen Service v. NLRB, p. 100
1. (Q.)
Retail Associates.
(A.) iemployer units are:
(a) Any party may withdraw prior to the date set for negotiation of a new contract
2. (Q.) Is an impasse in bargaining in a multiemployer unit an unusual circumstance justifying
unilateral withdrawal?
(A.) An impasse in bargaining in a multiemployer unit is not an unusual circumstance
3. (Q.) What is an impasse in bargaining?
(A.) An impasse in bargaining is a temporary deadlock or hiatus in negotiations that in
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4.12, Caterair International v. NLRB, p. 107
1. (Q.) Was it proper for the director of human resources to prepare fliers responsive to
employee inquiries as to how to decertify the union?
The director of human resources and the labor relations director made statements that
the propriety of such statements. Great care must be exercised in word choice. The
company was hiring permanent replacements and the directors should have used these
Section 8(a)(1).
2. (Q.) Evaluate the effects of the adverse decisions of the NLRB and the court of appeals on
Caterair.
3. (Q.) Advise the human resources director what she should have done after preparing the
flier on how to decertify the union.
4.13, Parkwood Development Center, Inc. v. NLRB, p. 110
1. (Q.)
union?
(A.) ority status, so that
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2. (Q.) What action should Parkwood have taken in view of the conflicting petitions, the first
one expressing the position that a majority of employees did not wish to be represented
by the union and a subsequent petition expressing a majority support for the union?
(A.)
4.14, NLRB v. Gissel Packing Co., Inc., p. 117
1. (Q.)
2. (Q.) Discuss the free speech differences between a union representation election and the
election of a legislator or the enactment of legislation.
3. (Q.) What standards did the Supreme Court set forth for evaluating employer statements to
employees during an organizational campaign?
(A.)
views about unionism or any specific views about a particular union so long as the
Since it was clearly ascertainable to be propaganda prepared by someone other than North
American and since an employee could not reasonably believe the company would change its
mind at
4.15 NLRB V. E.A. SWEEN CO., p. 120
1. (Q.) What is the rationale for the Shopping Kart-Midland National Life Insurance decision?
2. (A.)
Chapter 4 Railway and Airline Labor Relations Law
2. (Q.)
sic
misrepresentation was so pervasive and the deception so artful that employees would
not be able to separate the truth from the untruth?
4.16, NLRB v. Gissel Packing Co., Inc., p. 123
1. (Q.) Summarize the Cumberland Shoe doctrine.
(A.) The Cumberland Shoe case details the customary approach of the Board in dealing with
allegations of misrepresentation against a union and misunderstanding by employees
2. (Q.) What did the Supreme Court Cumberland doctrine?
(A.) Cumberland rule. The Court stated that
3. (Q.) Did the Supreme Court hold that the Taft-
duty to bar-gain under Section 8(a)(5) solely to those unions whose representative
status was certified after a Board election?
(A.)
4. (Q.) Under Gissel, when may the Board issue a bargaining order remedy?
(A.) The Board has the authority to issue a bargaining order as a remedy when it can be
4.17, H.K. Porter Co. v. NLRB, p. 128
1. (Q.) Summarize the facts of the case.
(A.)
dues owed to the union by its members. The company refused to do so and also refused
2. (Q.) What is a checkoff? How important is it to a union?
(A.) A checkoff is a system under which union dues, initiation fees, and sometimes other
3. (Q.) What is the issue before the Supreme Court?
(A.) The issue before the Court is whether the Board, under the circumstances outlined in
4. (Q.)
(A.) The Supreme Court decided that the Board did not have the power to require the
company to agree to a specific collective bargaining demand. The Court stated that
4.18, Hoffman Plastic Compounds, Inc. v. NLRB, p. 130
1. (Q.) Does federal immigration policy, as expressed in the IRCA, preclude the Board from
awarding back pay to an undocumented alien who has never been legally authorized to
work in the United States?
(A.)
2. (Q.) Does the employer get off scot-free for its violation of the NLRA because backpay is not
allowed?
Chapter 4 Railway and Airline Labor Relations Law
(A.) No. The Court expressly noted that a cease and desist order, subject to contempt
proceedings, remains a significant deterrent against future statutory violations by
3. (Q.) Does the dissent believe that the backpay remedy best serves as a deterrent against
unlawful activity that both the NLRA and the IRCA seek to prevent?
(A.) Yes. The dissent believes that the limited backpay order will have a deterrent effect
Chapter Questions and Problems, p. 132
1. [ law and rulemaking. Sections 4.7 and 2.4].
Since a court has not decided the questions asked in the case problem, the proposed
:
I.
Toering Electric Co. decision, is widely referred to as the Bush II
Board. This Board had a majority of Republican appointees since December 2002. It
overruled most of the major Clinton Board precedents and many longstanding prior Board
precedents.
On December 12, 2007 a letter signed by 57 Labor Law professors was sent to all
members of Congress criticizing the actions of the Bush Board. It stated in part:
Recent decisions by the National Labor Relations Board reflect an
ominous new direction for American labor law. By overturning
precedent and establishing new rules, often going beyond what
the parties have briefed or requested, the Board has regularly
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II.
While many employers do not like it, the Board and the U.S. Supreme Court have
Town & Country
III.
Applying the Chevron Toering Electric Co. decision, the
before the Board in this case, and that the Board decision was made without the benefit of
2. [Employer decertification options Section 4.13.] The Board majority held that a reasonable
reading of the petition signed by a majority of unit employees was that the signatory
employees w
lawfully withdrew recognition.
:
3. [ -bar doctrine Section 4.13.] The recognition-bar
eriod
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4. [Wearing union insignia on shirts at work Section 4:14.] Agreeing with the ALJ that customers
of AT&T Connecticut could not reasonably have mistaken the technicians for real inmates,
NLRB Chairman Wilma Liehman and Member Craig Becker held that the company
violated Section 8(a)(1) of the NLRA by prohibiting employees from wearing the shirts,
new CBA.
sufficient weight to the potential for employees wearing these shirts to frighten customers
5. [Independent contractors, employees, and supervisors, Sections 4.6 and 4.7.] An individual having
ght-to-control test. As stated in Phoenix Mutual
[Section 4.6], this test depends on the facts in each situation, most importantly on the degree
of control reserved and exercised by the person for whom the work is done. The Board will
look for the right to control not only the result of the work but also the details and means by
which the work is accomplished.
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:
The administrative law judge and the NLRB had previously ruled that the musicians were
6. [No Solicitation Rules, Section 4.14] The General Counsel provided the following answer. In
Register Guard, the Board majority noted that the employer at issue in that case had
permitted a variety of personal, non-work related e-mails but had not permitted e-mails to
The St. Margaret Mercy Healthcare precedent provides a clear view of discrimination in
7. [Remedial powers, Section 4.17.] The employees do not have to wait two to three years for
reinstatement. Under Section 10(j) of the Act the Board has discretionary power to obtain
injunctions in United States District Court in unfair labor practice cases. The Board may
request temporary relief pending resolution of the dispute before the Board. The Board must
first issue a complaint against the employer and then seek an injunction under Section 10(j)
8. [Craft severance, Section 4.12.] The Board must apply the so-called Mallinckrodt guidelines.
When deciding the issue of craft severance, the Board looks to the following:
(a) Distinct and homogeneous. The group to be severed in this case is not distinct or
representative of specific crafts. Over fifty different, unrelated trades have been
grouped together in the proposed unit.
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9. [Jurisdiction: Independent Contractors, Section 4.6.] The Board majority determined that
application of the Roadway and Dial-A-Mattress standards to the carriers in this case establish
of work, their vehicles and supplies; they are not supervised while performing work; and
10. [Coercive letters, wage increases, and threats, Section 4.14.] The court concluded as follows:
(a) The letters sent to employees could be defended as an exercise of employer free speech,
but they were subject to the principles set forth in Section 8(c) of the NLRA and the
limitations outlined in Gissel [Section 4.14]. If an employer defends such letters under
Gissel, cited no
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The court held that the Board should issue a bargaining order based on authorization cards
under Gissel. This remedy would prevent Hasbro from profiting from its own unfair labor
practices.
11. [Appropriate bargaining unit, Section 4.10.] The American District Telegraph decision holds that
employees such as these are guards under Section 9(b)(3). The uniforms and nightsticks are
12. [Decertification, Section 4.13.] An employer must refrain from any interference with a
decertification election. An employer may not promise benefits or threaten reprisals to
encourage an antiunion vote in a decertification election. In this case the hearing officer
13. [Bargaining based on authorization cards, Section 4.16] It is clear that the Company committed
down the business rather than dealing with workers represented by a union (Section
8(a)(1)), and firing five union supporters for engaging in lawful picketing (Sections 8(a)(1)
company in requiring workers to provide documentation of immigration status in order to
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14. [Jurisdiction: Employees under the Act, Section 4.7
2007 Toering Electric Co. decision. Under the 3-2 majority alteration of its FES framework, the
General Counsel has the initial burden of proving that Dooley and King had a genuine
interest in seeking to establish employment relationships with the employer. These union
organizers, if they were called to testify by the General Counsel could be cross examined
15. Discipline for posting of employment complaints on social media [Section 00]. Division
ther than an effort to induce Wal-Mart employees to engage in group action. The
Associate General Counsel determined that the charge against Wal-Mart should be
dismissed.
It is important to point out that all employees are protected by Section 7 of the NLRA
if their activity on so Section 7 of the NLRA protects not only
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