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Taft-Hartley amendments prohibit a union from restraining or coercing employees in the exercise
7. By what methods are collective bargaining agreements enforced?
There are three methods by which collective bargaining agreements are enforced:
a. Enforcement by either the NLRB or the courts
8. How did the “Steelworkers Trilogy” help clarify the role of arbitration and court enforcement of
contracts?
9. What individual rights do employees have within the collective bargaining process?
10. Why does management often desire to add a zipper clause to a CBA?
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CHAPTER 10: YOU BE THE ARBITRATOR!
Refusing to Arbitrate
1. As arbitrator, what would be your award and opinion in this arbitration?
2. Explain why the relevant provisions of the CBA as applied to the facts of this case dictate the
award.
3. What actions might the employer and/or the union have taken to avoid this conflict?
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CHAPTER 10: EXTRA CASES
Unfair Labor Practice by Employer
Facts:
For 20 years, the experienced and apprentice wire weavers of the company had been represented by a
union. But after a 13-week strike, the relationship ended. For almost 13 years thereafter, the employees
were not represented by any union. A new union began organizing employees, and having reached
majority status, requested that it meet with the company. The company refused to recognize the union. An
election was held, and the union lost by a vote of seven to six. The union petitioned the NLRB to set aside
the election because the pre-election conduct of the company’s president was an unfair labor practice. The
Board agreed, set aside the election, and entered an unfair labor practice charge. The company appealed.
Decision:
The court examined the pre-election conduct of the president. He had on numerous occasions, orally and
in writing, urged the 14 employees to reject the union. He claimed that the union’s only weapon was a
strike, and that the last strike had nearly ruined the company. He also warned that the company was still
not financially secure and that a strike could close the plant. He denounced the particular union and its top
officials as corrupt and strike-happy. He added that the wire weavers’ age and lack of education would
make it difficult for them to find other jobs. The company defended the pre-election remarks on the
Questions for Discussion
1. Do you think the fact that there were only 14 employees involved influenced the finding of the
Board and the Court?
2. If the President truly feared economic hardship because of unionization, how could he
communicate that without violating the employee’s right to a free choice?
Domination
Facts:
The professional employees of a medium-size architectural firm voted to be represented by a union. More
than a year later, after months of unsuccessful negotiations, an employee petitioned for a decertification
election.
The union lost the election. Immediately after the election, a partner in the firm called a meeting
of partners and professional personnel to ask for suggestions on ensuring management–employee
dialogue.
An employee suggested a committee system whereby five in-house committees, composed of five
employees and one management representative, would examine a different area of employee concern,
The union filed an unfair labor practice charge against the employer for supporting and
dominating a labor organization. The National Labor Relations Board agreed and ordered the employer to
withdraw its recognition and support, and to disestablish the employees’ committees. The employer
appealed.
Decision:
The Supreme Court pointed out that there is a line between employer cooperation, which the act
encourages, and employer domination, which the act condemns. That line is crossed when, from the
standpoint of the employee, freedom of choice has been stifled.
The court found that the totality of circumstances in this case did not show such domination.
Allowing the committees to meet on company time alone is not unlawful support. The court noted that the
idea for the committee system came from an employee and was supported and approved by other
Questions for Discussion
1. Do you think the court was influenced by the fact that the employees in question were
professional employees in an architectural firm? Why?
2. Was the Board’s finding of employer domination more of a reaction to the unusual nature of the
employee committee than to the facts of the alleged interference?
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3. The union had failed to reach an agreement with the employer after more than a year of
bargaining. Was the employees’ freedom of choice stifled by that fact, so that the selection of the
alternative system did represent employer domination?
Unfair Labor Practice by a Union
Facts:
A union decided to try to organize employees of four direct mail companies. A plan was devised whereby
a union organizer, accompanied by a group of persons acting on behalf of the union, would descend upon
the four companies without permission and distribute union literature during working hours.
The nature of the union’s conduct is illustrated by the following:
1. In the first incident, 25 men and women swarmed into the plant, moved to where
2. Two days later at another plant, 25 men and women entered by the front entrance and
3. One company, fearing it would be next, hired a uniformed guard. 25 union members
found the door unlocked, pushed past the armed guard, threatened to kill him with his
Decision:
The court upheld the Board.
The act forbids a union from restraining or coercing employees in the exercise of their rights. The
court noted that one right is to refrain from collective bargaining activities. The union’s conduct, which
included threats and physical violence, constituted illegal coercion.3
Questions for Discussion
1. The defiant attitude of the union organizers was primarily directed at the employer’s
representatives who asked them to leave. Why would this have any affect on the employee’s
exercise of their rights?
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2. If the union activity had been limited to one location, would the finding have been the same?
3. Why did the union think such a plan might succeed in encouraging union membership?
Good Faith
Facts:
An employer manufactures oil field pumping equipment that it delivers by its own transportation
department throughout the United States and Canada. Because of previous violations of the Interstate
Commerce Act, the company notified its employees in all future trucking activity it would comply with
ICC regulations. The employees, fearing such compliance would affect their earnings, began a union
drive. The union requested recognition to which the employer did not respond directly. However, the
employer, over the next three months, did three things: 1) replaced the trucking foreman with someone
obviously antiunion, 2) announced significant alterations of wages, working, and trucking conditions,
apparently to be in compliance with the ICC, and 3) subcontracted the work. The union charged the
employer with unfair labor practice for failure to bargain in good faith.
The Board found that the new foreman questioned the employees about the union, urged them to
withdraw, and promised pay raises if they complied. He also threatened that the employer would sell the
trucks before accepting a union. He suggested a counter petition to the one pending before the National
Labor Relations Board requesting union recognition.
All of these activities violated the employer’s duty to bargain in good faith. In addition, the
unilateral change of wages and working conditions clearly violated the good faith duty to bargain. The
Board also found the decision to contract out the transportation work to be antiunion motivated and thus
an unfair labor practice. The employer appealed.
Decision:
The court had no trouble finding the foreman’s activities and the unilateral change of wages and benefits
as a breach of the good faith duty. Nevertheless, it examined the decision to subcontract more closely
because of the employer’s contention that it was motivated by a genuine desire to alleviate its ICC
problems. The court upheld the Board, however, because the facts justified a finding that the employer
believed it could solve both its ICC problem and its union problem by eliminating the trucks. Such an
action becomes, therefore, a violation of the employer’s good faith duty to bargain.4
Questions for Discussion
1. Was the foreman’s “prediction” that the employer would sell the trucks before accepting the
union, a good indication of the employer’s dual goal, that is, of satisfying the ICC and busting the
union?
2. How could the employer have eliminated the trucking department without violating its good faith
obligation?
3. Although the court upheld the Board’s decision, it reversed the Board’s order requiring the
employer to resume its trucking operation. The court noted that all the trucks were sold already
and such a remedy may well frustrate the union’s future ability to bargain. Can you speculate as
to the court’s reasons?
Discrimination
Facts:
The employee in this case was reportedly under the influence of liquor while on duty. He helped other
employees obtain liquor while on the job and would punch their time cards for them. His supervisor had
tried to fire him, but his superiors always prevented it because the employee was a representative of the
company-dominated union. Circumstances changed, however, after it was rumored that he had joined a
union that was trying to organize the plant. The day after he was seen talking to a union official, he was
fired. The Board found that the employee was fired because of his activities on behalf of the union and
ordered him reinstated. The company appealed.
Decision:
The Supreme Court agreed with the Board. It pointed out that although an employer can hire or fire an
employee for a good, bad, or no reason, the employer couldn’t do so to encourage or discourage
membership in any labor organization. The facts of this case showed that although the employer had
legitimate reasons to fire the employee, the employee was let go when he became active on behalf of the
union. This clearly violates the Act.5
Questions for Discussion
1. If the employer has a good reason for firing an employee (absenteeism) and a bad reason (union
activity), should the employer be allowed to prove the weight given to both before being found
guilty of “discrimination” under the Act?
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2. The Act assumes that discrimination of one employee will discourage union activity. Is that
assumption valid?
Employer Retaliation
Facts:
The company operates about 700 convenience stores. A sales assistant at one of the company’s stores was
murdered while on duty. The murder was widely publicized, and employees complained of inadequate
security measures. As a result of the murder, 15 sales assistants telephoned the union requesting a union
organization effort. The union sent representatives to 60 stores in the area where the murder had occurred
and left union authorization cards. Two days later, the company notified the union that an injunction had
been issued during a prior union campaign prohibiting solicitation on company property.
The next workday, the company had a meeting with the store managers in the area and talked
about the need to improve security. The company officials also discussed the union’s organization
activities and reminded the managers of the “no solicitation” policy and stated that a union would not
necessarily do the employees any good. Later that week, the company had an unprecedented meeting for
all sales assistants. Approximately 200 sales assistants attended and were paid for their time. The
company officials told the employees that they did not need a union and that the employees from the
union could retrieve their authorization cards. The employees were asked to voice their complaints and
the employees listed the following: getting less than 40 hours work per week, not having breaks, not
being paid for overtime work, working alone at night, and poor lighting at the stores.
The next day, the company sent a memo to all regional personnel directing that sales assistants
should work a 40-hour workweek; canopy lights were installed at all the stores; a policy was adopted that
no one would be required to work alone at night; and sales assistants began receiving wages for after–
hours overtime work. The company posted “no solicitation” signs in all stores and directed that those
signs be enforced; if the employees did not enforce the signs, they would lose their jobs. Later that month
the company held further meetings with sales assistants, who again were paid for their time. They were
asked to select committee representatives to meet with management to discuss their complaints.
Management officials left the room while the employees selected their representatives. The company
made a list of the 10 most frequently mentioned items from the employees’ recommended subjects for the
committee to discuss.
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around announcing other improvements in life, major medical, and accident insurance plans, in addition
to death and family benefits and a revised disciplinary appeal system.
The union charged the company with unfair labor practice for granting benefits to prevent a fair
election and for creating an employer-dominated labor union. The company denied that the motivation for
the benefits was to prevent a union, and furthermore that the employee organization was a “labor
organization” under the NLRA. Even if it was a “labor organization,” the company denied that it was a
company-dominated organization.6
Decision:
The hearing officer found clear patterns of antiunion animus in the company’s activities and thereby
rejected the company’s contention that motivation was other than antiunion. In addition, the hearing
officer found that the employee committee created by the employer was, indeed, a labor organization in
that it was “an employee representation committee … for the purpose in whole or in part of dealing with
employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions
of work.”
Also, the hearing officer felt that the record clearly showed an unlawful domination or
interference by the employer with the employee committee. The company formed the committee in direct
response to the organizational campaign. The committee had no meetings apart from its discussions with
management; formed no independent program or plan of action, and discussed only those subjects that the
company determined was of the greatest concern to the employees. The meetings with management were
held on company premises and the company paid the employees for their time. The agenda was as
prepared by management, and management took the minutes and controlled all the communications
concerning the committee’s work.
Questions for Discussion
1. Did the company’s actions in forming an Employee Management Committee interfere with the
union’s organizational efforts? Explain your answer.
2. Should a company be prevented from instituting necessary employee benefits because of union
organizing?
3. Explain why the Employee Management Committee could be considered a “company union.”
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CHAPTER 10: EXERCISE AND EXERCISE GUIDANCE
What Do You Really Know About Organizational Campaign Unfair Labor Practices?
Purpose:
To give students an understanding of employer rights during an organizational campaign.
Task:
Managers often have a great deal of influence with their employees. Thus, knowing what managers
lawfully may and may not tell employees during a union organizing campaign is very important. They
should be certain their actions do not unintentionally cause an unfair labor practice. You must determine
if managers are generally allowed or prohibited from each of the following. Place an X in the most
appropriate column:
Allowed
Prohibited
1.
_____
_____
Managers can ask employees how they intend to vote.
2.
_____
_____
Managers can promise employees a pay increase if the union is
defeated.
3.
_____
_____
Managers can tell employees that the law allows the employer to
permanently replace them if they strike.
4.
_____
_____
Managers can tell employees about the bad personal experiences they
have had with unions.
5.
_____
_____
Managers can say, “If the union wins, there will be a strike.”
6.
_____
_____
Managers can visit the employees at home to discuss the campaign with
their families.
7.
_____
_____
Managers can tell employees they can vote against the union even if
they signed an authorization card.
8.
_____
_____
Managers can tell employees that management does not think the
employees need a union to represent them.
9.
_____
_____
Managers can tell employees the plant will be closed if the union wins
the election.
10.
_____
_____
Managers can tell employees that if a union is victorious, all current
wages and benefits must be negotiated and could be reduced.
Generally, these determinations follow the NLRB and court decisions:
Allowed: 3, 4, 7, 8, and 10
Prohibited: 1, 2, 5, 6, and 9
After students individually score their exercises, it would be helpful to discuss each and emphasize that
past practice and intent would be closely examined in a case involving one or more of the prohibited
activities.