Chapter 5 EMPLOYER UNFAIR
LABOR PRACTICES
Case Questions
5.1, NLRB v. J. Weingarten, Inc., p. 146
1. (Q.) What Section 7 guarantee does the Court stress in its opinion?
2. (Q.)
representative present when the employee is being questioned?
3. (Q.) ason for leaving unfair labor practice determinations to
the NLRB rather than the courts?
(A.)
5.2, IBM Corporation, p. 149
1.
construction of this language in Weingarten was that it created a statutory right in an
employee to refuse to submit to an interview which the employee reasonably feared
may result in discipline without union representation. Does this same language
provide the same rights to unrepresented employees?
(A.) For policy reasons, the Board majority decided that the above quoted language did not
2. (Q.) Did the Dissent concede that the Board Majority could legally overrule the Epilepsy
Foundation precedent?
Chapter 5 Employer Unfair Labor Practices
Comments:
As opposed to the judicial process with its general acceptance of the doctrine of
stare decisis the doctrine of following precedents and its narrow exceptions, the
administrative process relevant to labor relations law has a tradition of some fluctuation
3. (Q.) List some advantages and disadvantages to having a coworker present at an
investigatory interview.
(A.) Ordinarily a coworker witness is just that, a witness. He or she can listen to what is
said, and if need be, confirm or deny statements or discussions made at the interview at
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5.3, Electromation, Inc., p. 152
1. (Q.) Assess the fairness of the following statement in light of the Pennsylvania Greyhound
Lines precedent case, -dominated organization robs employees of the
(A.) The statement appears to be accurate. The Greyhound employees were entitled to select
2. (Q.) Read Section 8(a)(2) of the Act and identify the three forms of employer conduct
prohibited by this section of the Act.
(A.) Section 8(a)(2) makes it an unfair labor practice for an employer (1) to dominate in the
financial or other support.
3. (Q.)
administration of the Action Committees?
(A.)
5.4, Dana Corporation and United Auto Workers, p.154
1. (Q.) Read the content of the LOA. What rational basis would the employer have to
voluntarily meet with the Union and agree to the LOA, rather than insist that the UAW
unions a bad thing?
(A.) Dana Corp has an existing relationship with the UAW in nine U.S. facilities. The
state
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a strike or lockout.
2. (Q.) May card-check/neutrality agreements be utilized to legally determine majority
support for a union?
(A.) It is well settled, that an employer may voluntarily recognize a union that has
3. (Q.) Did the dissent believe that the parties did more than establish a procedural
framework, and negotiated a substantive contract provisions with a minority union,
c Majestic Weaving precedent? Identify some substantive
provisions, if any.
(A.) Yes. Dissenting member Hayes said the LOA was a contract that did more than
5.5, NLRB v. Transportation Management Corp., p. 158
1. (Q.)
employer?
2. (Q.) Why was Mr. Santillo fired according to the company?
3. (Q.) Did the Supreme Court find that the Board was justified in concluding that Mr. Santillo
would not have been discharged had the employer not considered his efforts to
establish a union?
(A.) Yes. The Court reached this conclusion based on the record before it, including:
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4. (Q.) Did the Supreme Court agree with the Court of Appeals that Section 10(c) of the Act
forbids placing the burden on the employer to prove that, absent the improper
motivation, the employer would have acted in the same manner for wholly legitimate
reasons?
(A.) No. The Supreme Court stated that the Court of Appeals was in error in holding that
Section 10(c) forbids the placing of the burden on the employer to prove that, absent the
5.6, NLRB v. Brown, D.B.A. Brown Food Stores, p. 161
1. (Q.) What factual difference existed between the Buffalo Linen case referred to in the text and
the Brown case?
(A.) In Buffalo Linen all the employers shut down operations to defend the multiemployer
2. (Q.) Why did the Court reverse the B
(A.) In the absence of independent evidence showing unlawful motive, the Court held that
3. (Q.) What is an illegal lockout?
needs of the employer, it is legal.
4. (Q.) What is meant by a whipsaw strike?
(A.) A whipsaw strike is a strike against one strategically situated employer in order to
against other companies.
5. (Q.) What limits NLRB discretion in rulings in economic disputes?
(A.) This decision limits the Board to decisions rested on proper legal foundations based on
5.7, Textile Workers of America v. Darlington Manufacturing Co., p. 162
1. (Q.) State the facts of this case.
(A.) Darlington Manufacturing Company was a South Carolina corporation operating one
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:
It is of interest to review the Darlington case subsequent to the 1965 Supreme Court
ruling as set forth in the text. On remand the NLRB ordered that the 550 workers who
2. (Q.) May an employer close down its business for any reason it pleases?
3. (Q.) What remedy did the Board order?
(A.) The Board ordered back pay for all Darlington employees until they obtained
4. (Q.) Summarize the rule promulgated by the Supreme Court.
(A.) reasons
(1) have an interest in another business, whether or not affiliated with or engaged in the
same line of commercial activity as the closed plant, of sufficient substantiality to give
5.8, NLRB v. Great Dane Trailer, Inc., p. 165
1. (Q.) What is the issue that the Supreme Court is called upon to resolve?
(A.) The issue of the case is whether, in the absence of proof of an antiunion motivation, an
2. (Q.) What are the controlling principles set forth by the Supreme Court concerning the
significance of employer motivation in the context of an alleged Section 8(a)(3)
violation?
(A.) The controlling principles concerning employer motivation are as follows:
Chapter 5 Employer Unfair Labor Practices
(a)
3. (Q.) What was the holding of the case?
(A.) The Supreme Court held that since the company came forward with no evidence of
5.9, NLRB v. Studio Transportation Drivers, Local 399, p.170
1. (Q.) State the union membership requirement under Section 8(a)(3) of the NLRA as
Beck decision.
(A.) Although the NLRA Section 8(a)(3) permits union security clauses, the Supreme Court
2. (Q.) What did the Court find wrong with the union spending funds the union had lawfully
been awarded in arbitration proceedings on political candidates supportive of union
ideals and charitable contributions for the good of the community.
(A). In choosing to spend the secondary income from the arbitration awards on political and
5.10, Fibreboard Paper Products Corp. v. NLRB, p. 177
1. (Q.) What company action caused this complaint?
Chapter 5 Employer Unfair Labor Practices
(A.) After receiving union proposals for contract revisions, the company advised the
2. (Q.) What remedy did the Board order?
(A.) It ordered the company to reinstitute the operation with its own employees, to
3. (Q.) With this decision, did the Supreme Court expand the scope of mandatory bargaining
to include all subcontracting situations?
(A.) No, the Supreme Court held that the replacement of employees in an existing
5.11, First National Maintenance Corp. v. NLRB, p. 178
1. (Q.) Why did the Supreme Court decide to hear the case?
(A.) The Supreme Court decided to hear the case because of the importance of the issues
2. (Q.) State the test the Court applied in determining whether the partial closing was a
mandatory subject of bargaining.
(A.) The Court applied a balancing test. It stated that bargaining over management
3. (Q.) Did the Court conclude that the partial closing was a mandatory subject of bargaining?
(A.) No. The Court concluded tha
4. (Q.) Under the FNM decision, may an employer shut down part of its business in order to
(A.)
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5. (Q.)
stop work at Greenpark?
(A.) Yes. The administrative law judge recommended an order, which the Board adopted,
that required FNM to bargain about not only its decision to terminate the Greenpark
:
t sight of in this case. Bar-gaining
on effects can often lead to an exchange of ideas on the basic decision to terminate an
5.12, Southern Nuclear Operating Co. v. NLRB, p. 180
1. (Q.) Does an employer violate the NLRA by making a u
subject of bargaining?
2. (Q.) Did the employ care and life insurance benefits of future
retirees without input from the unions constitute unilateral changes in mandatory
subjects of bargaining?
(A.) opinion those unions
(A.) In the Allied Chemical Workers v. Pittsburg Plate Glass Co. precedent discussed in the case,
the Supreme Court held that retirement benefits for workers who have already retired
Labor & Employment Law 41
5.13, Fall River Dyeing & Finishing Corp. v. NLRB, p. 185
1. (Q.) Is a successor under an obligation to hire the employees of its predecessor?
(A.) The successor is not obligated to hire the employees of its predecessor. However, it
:
these employees have the skills and experience necessary to carry out the operations of
the business. There is a tremendous economic advantage to hiring such employees.
However, with that economic advantage may come a duty to bargain under Burns.
2. (Q.) Did the fact that there was a seven-month hiatus between the shutdown of Sterlingwale
and the start-up of Fall River demonstrate that Fall River was not a successor?
3. (Q.) At what point in time does the Board determine whether a new employ
is made up of a majority of employees of the predecessor?
4. (Q.) When did the dissenting justices believe the majority status should have been
determined?
(A.) The dissenting justices believe that the Board should have waited until the full work
Chapter Questions and Problems, p. 191
1. [Section 7 rights of employees; Section 8(a)(1) ULP violations by employers Section 5.1, 5.2.]
Context is very important in Section 7 cases. Gurley announced the no-harassment rule after
previously promulgating the illegal rule prohibiting workers from discussing the union or
2. [Preemption, Section 4.8; Employer unfair labor practices, Section 5.2.] Under the preemption
doctrine, the court must decide whether to apply San Diego Building Traders Council v.
Garmon as refined by the Supreme Court in Sears Roebuck [Section 4.8]. The court must
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against the restaurant. The Supreme Court held that where the NLRB is called upon to
determine if a state lawsuit is an unfair labor practice prior to the time the state court
renders a judgment and the plaintiff can show that a genuine issue of fact exists, the
employee must bear the expense of the state litigation and the NLRB must await the
outcome of the state suit. If the state proceedings result in a judgment adverse to the
s Comments:
Subsequent to the decision, the Supreme Court reconsidered the issue of
BE & K Construction Co. v. NLRB, 461 U.S. 731
(1983). In BE & K, the Court rejected its earlier view in Bill John that allowed the Board
to find a concluded meritless lawsuit to be unlawful if it had been filed for a retaliatory
motive. The Court in BE & K noted that the First Amendment protection of the right to
petition the government, includes the right of access to the courts. It held that, for purposes
of protecting legitimate petitioning, the proper focus of the inquiry is the reasonableness of
the petition from the perspective of the plaintiff at the time the lawsuit was filed. The Court
held that the previous standard was overly broad because it would condemn some lawsuits
that constituted genuine petitioning protected by the First Amendment. Thus after BE & K,
the Board could no longer rely on the fact that a lawsuit was ultimately unsuccessful, but
must determine whether the suit was reasonably based from the outset.
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3. [Bypassing the union and undermining the employee representative, Section 5.10.] Although the
not protect th
under Section 8(c), these communications are themselves an unfair labor practice under
4. [Union representation at investigatory interviews, Section 5.2.] GM has committed a Section
8(a)(1) violation. According to Weingarten, once an employee requests union representation
5. [Dual-motive cases and the Wright Line test, Section 5.4.] This case must be considered under
the Wright Line two-step approach because it contains elements of violations of company
rules and union activity on the part of the charging party. At step 1, a prima facie case of
6. [Discrimination for union activities, Section 5.4.] Section 5.4 of the text mentions that job
applicants, as well as employees, are protected from antiunion discrimination. Because
Wyman- y, suspicion of discrimination is
7. [Duty of employer to bargain, Section 5.10.]
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8. [Employer refusal to bargain, Section 5.10.] Marriott has violated Sections 8(a)(5) and (1). Under
Section 9(a) Marriott must bargain with the elected representative of the employees. As
9. [Freedom from interference: Union bulletin boards, Section 5.2.] The company has the burden of
proof in this case to show special circumstances justifying the prohibition. The Board held
:
Often cases of this nature turn on the evidence presented at the hearing. The employer
had to prove with objective evidence special circumstances justifying its action, such as that
the posting was undermining discipline in the plant. It appears that in this case the
company merely argued that the posting would create animosity. It did not prove such with
objective evidence from wit-nesses directly involved in the matter.
10. [Successor employer and the duty of the employer to bargain, Sections 5.10 and 5.11.] The court
Burns and was thus
obligated to bargain with the union. The court applied Burns and Howard Johnson Co. v.
11. [Freedom from interference, discrimination as to hire and tenure, and discrimination for concerted
activities, Sections 5.2, 5.4 and 5.7.
Denaple about her union involvement was a classic threat of reprisal in violation of Section
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12. [Suc ligations to bargain, Section 5.11.] Ordinarily a successor is free to set
the initial terms and conditions of employment. An exception exists where substantially all
of the predecessor employees are to be retained, then the employer has an obligation to
USM discriminated against the 34 Chrysler employees not hired in order to avoid its
13. [Employee Participation and Employer Domination, Section 5.3.] A brainstorming group has the
purpose of developing a whole host of ideas. Management may glean ideas for this process,
and indeed may adopt some of these ideas. If the brainstorming session makes no proposal,
labor organization or union. In the present case, the EOIC constituted a statutory union
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14. [Discrimination as to hire and tenure, Section 5.4; freedom from interference Section 5.2.] TBC
committed unfair labor practices by disciplining union activists and in demoting an
Edwina Flannery was closely related to an allegation in the
demotion was not timebarred under the six-month time period for filing complaints. The
instructor may point out that the initial charge was dated October 16, 1995, which referred
-known status as a union activist
and the extensive evidence of anti-union animus provi
demonstrate that it would have issued the warning absent this motivation. There was also
substantial evidence that it was not Flannery
n February 5, 1996, and the June 6, 1996, written
warning to Michael Flannery prove Sections 8(a)(1) and 8(a)(3) violations.
As a matter of law, the Board appropriately concluded that Section 8(a)(1) prohibits a
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Two groups of students may be assigned to read the full decision of the Court of
15. [Mandatory Subjects of Bargaining, [Section 5.10.] In Fibreboard the Supreme Court ruled that a
decision to subcontract out work, which included the replacement of employees in an
existing bargaining unit with those of an independent contractor, was a mandatory subject
of bargaining. Although Fibreboard did not involve a sale of assets, such as the sale of trucks,
16. [Right of employees to representation at investigatory interviews, Section 5.2]. The ALJ found that,
under the Epilepsy Foundation decision, Wal-Mart violated Section 8(a)(1) by requiring
employee Stanhope to continue an investigatory interview on March 16, 2001, after
that Wal-Mart violated Section 8(a)(1) by terminating Mr. Stanhope after he refused to