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PART IV: THE LABOR RELATIONS PROCESS IN ACTON
CHAPTER 10: UNFAIR LABOR PRACTICES AND CONTRACT ENFORCEMENT
LABOR NEWS: UNFAIR LABOR CHARGES
FILED AGAINST AFSCME UNION
CHAPTER 10: OUTLINE
I. Union Organizational Campaigns: Organizing and Avoidance Strategies
A. Employer—interference with employee rights
2. If employer has a legitimate business reason for conduct, union may have to
prove actual intent.
B. Organizing at the workplace
1. Republican Aviation. Rules prohibiting union solicitation by employees outside
2. Oral solicitation allowed during nonworking times.
4. Right to wear insignias is balanced against employer’s right to conduct business.
6. Lechmere case. Supreme court in Lechmere case said employers could ban
7. E-mail solicitation now being used in workplace as well.
8. Employer rules
II. Unfair Labor Practices
A. Typical Unfair Labor Practices in organizing campaign
1 Table 10-1 lists examples of prohibited and allowed activities
2 Misleading information, misrepresentations
3. Threats of withholding benefits
4. Interrogation and polling of employees (Case 10-1)
a. Struksnes Construction, Inc. Polling is unlawful unless done by secret
5. Surveillance. Usually viewed as unfair labor practice.
6. Poll activity. NLRB prohibits it within 100 feet of polls.
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7. 24-hour rule. Peerless Plywood Case no campaign speeches 24 hours before an
election. Employer cannot distribute propaganda regarding possible loss of
benefits within 24 hours of an election
B. Domination of and Assistance to Labor Organization
2. Domination—actual control.
a. Remedy—disestablish union.
3. Support—if it has no effect on employees’ rights and is trivial, it may not be a
5. Employee Teams
a. Under Electromation case, court ruled that employee action committees,
which were established by the employer and which would make
C. Discrimination in Employment
D. Concerted Activities
1. Protected concerted activity
2. Unprotected concerted activity
3. Primary Strike. Protected if called for economic reasons or to protest an unfair
labor practice.
4. Weingarten rule. Protected concerted activity includes insistence by employee
for union representation at an investigatory interview that could lead to
III. Unfair Labor Practices by Labor Organizations
A. Imposed by Taft-Hartley Amendments
B. Restraint or Coercion of Employees
1. Employee has right to refrain from union activities.
2. Pattern Makers League v. NLRB. Union guilty of unfair labor practice when it
C. Union Interference with Elections
2. Threat of violence (Sec. 8, NLRA).
3. NLRB may overturn election.
IV. Duty to Bargain in Good Faith
A. Duty imposed upon both employer and employee—refusal to bargain—unfair labor
practice
2. Sincere effort
4. Must put agreement in writing
B. Totality of Conduct Doctrine
1. Look at total conduct to determine if there is a refusal to bargain
C. Factors NLRB looks at in totality doctrine
1. Character of proposals and demands
3. Conditions imposed on scope of bargaining
5. Bypassing the bargaining representative
7. Willingness to make concessions
D. Duty to Furnish Information
2. Information requested must be relevant.
3. Information must be promptly delivered in workable form.
V. Rights and prohibited conduct during term of contract (Table 10-5)
A. Duty to bargain during the contract term
1. Good faith collective bargaining includes the duty to bargain during
2. Zipper Clause/wrap-up-clause—waiver of right of either party to
4. Separability Clause—a clause that states any portions conflicting
5. Union demand to negotiate
6. Employer’s Unilateral Action
C. Prohibited Economic Activity
1. Secondary Boycotts
a. In DeBartola Corp v. Florida Gulf Coast Trades Council, the Supreme
2. Hot Cargo Agreements
4. Featherbedding—“services not performed”
VI. The Authority of NLRB
A. Filing of appropriate form with NLRB regional office starts an unfair labor practice
charge.
B. Investigation
C. Hearing before an administrative law judge
D. Appeal—NLRB (subpanel of three members)
E. In 2006 36.9 percent of cases before NLRB were settled, 28.3 percent dismissed, 31.3
percent withdrawn, and on 1.8 percent ending with Board Order. (Figure 4-3)
F. Settlements increased after 1995 institution of Unfair Labor Practice Settlement Program.
G. Section 10(j) Court Injunctions
2. Examples of 10(j) cases fall into 13 categories listed in text.
H. Unfair Labor Charges can be filed against unions as well.
VIII. Contract Enforcement by NLRB
A. NLRB can investigate unfair labor practice claims.
2. Violation of NLRA.
4. Unilateral actions of employer has modified contract.
B. Court and NLRB deferral to arbitration
1. Resolution of a dispute by an outside party 2. If arbitration is required by the
agreement, resorting to other means to settle the dispute is illegal.
2. Court and Board Enforcement
a. Function of court is limited.
i. Lincoln Mills Case. Court held that where either party has
refused to arbitrate as provided in the agreement, the other party
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VIII. Public Sector Unfair Labor Practices
A. Federal employees covered by FLRA; therefore, Federal Labor Relations Authority
enforces unfair labor practices. Including those involving NLRB employees as seen in
Case 4-3.
B. Same guidelines as in private sector.
IX. Public Sector Contract Enforcement Issues
A. Reducing the Contract to Writing
1. If either party requests, contract must be reduced to writing.
B. Contract Enforcement
2. FLRA has jurisdiction in unfair labor practices and in all arbitration awards
X. Individual Rights within Unions
A. Duty of Fair Representation
1. Exclusive right to represent all employees in unit. (Profile 3-3 discusses how that
2. Must represent all fairly.
4. Unfavorable treatment may result; however, it can’t be the result of irrelevant or
insidious consideration.
5. In one case, the court ruled that the facts need to be looked at where the union
6. Vaca v. Sipes. The court states that a breach of duty to represent an employee
8. A cause of action exists against both employer and union when employee is
treated unfairly.
CHAPTER 10: CASE DISCUSSION
Case 10.1: Unlawful Interrogation
1. Explain why you agree or disagree with the decision of the court.
Agree: There is no doubt that the goal of the inquiry was to find a way to keep the union from
being brought into this workplace. The supervisor obviously knew that the employee being
questioned was an employee who would be eligible to be a part of a bargaining unit, or else why
would he think she had information on the union? And, suggesting that the employer would make
2. Do you think the supervisor in this example had a realistic expectation that replacing one
supervisor would so satisfy the employees that they would reject the union?
Case 10.2: Employer’s Unfair Labor Practice—Retaliation
1. Explain why you agree or disagree with the Supreme Court’s ruling.
Agree: The courts have always protected a citizen’s right to bring a lawsuit. Winning a lawsuit is
not the right test to apply to determine if the case had merit. Many cases based upon an untested
legal theory make new law. If plaintiffs are prevented from bringing such cases out of fear, the
2. The union’s aggressive behavior in this case led to the claims and cross claims that finally
reached the U.S. Supreme Court where the union lost. Do you think this was a good use of union
resources?
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CHAPTER 10: END CASE DISCUSSION
Case Study 10.1: Unfair Labor Practice by Employer
Decision:
The court ruled that the following actions did violate the standards for an employer’s actions during a
certification campaign and called for another election:
• Moving the manufacturing item from the plant without an explanation AFTER distributing
the news article. (2 and 3)
Questions for Discussion:
1. Which, if any, of the employer’s actions might the court find violated the Act which would cause
the election to be set aside?
a. The Human Resource Director distributed a letter to employees asserting that two-thirds
of the 600 plants that had closed in their state over the past 20 years had been unionized.
b. The employer distributed an article concerning Ford’s decision to move a parts contract
from a supplier whose workforce had gone out on strike, emphasizing that the striking
union was the UAW.
c. Around Christmas, the employer relocated production of a Ford part to another one of its
plants at a location not subject to the pending election petition. The employer offered no
explanation for the move.
d. The employer told the employees that negotiations on a renewal contract with a customer
was being held in abeyance until the outcome of the union election, although the
customer also had issues of quality and delivery to discuss.
e. The employer displayed large photo posters of closed manufacturing plants and
distributed a letter noting that all of the plants had been unionized.
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f. On January 9, 1985, the President of the company sent a letter to employees telling of his
concern that its manufacturing partners would become nervous and go elsewhere if the
company developed “… a reputation for not being dependable because of labor problems,
a UAW–led strike, or even the possibility of a strike every time the contract comes up for
renewal.…”
g. On January 10, 1985, the Division Manager told employees that the employer was
concerned about the impact of the union vote on its manufacturing customers. On January
9 and 10, one such customer did a very visible “walk–through” inspection of the facility
accompanied by numerous managers.
2. Recognizing that this election took place in 1985, do you think the employees would see through
the employer’s tactics and vote the way they wanted in spite of the employer’s actions?
3. Would you have been swayed by the employer’s actions to the point where you could not have
voted with “freedom of choice”?
Case Study 10.2: Unfair Labor Practice by a Union
Decision:
The hearing officer found that the kinds of acts outlined in the case established a pattern and practice of
coercive conduct on the part of the union. The hearing officer found the statement “Sometimes it takes
this kind of thing to get the point across” as an admission on the union’s part that it intended to capitalize
Questions for Discussion:
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1. Would you set aside the election results and order another election? Explain your answer.
2. How could the union have stopped individuals from the intimidating actions that allegedly went
on in this case?
3. Does the racial nature of the rhetoric involved in this case put a heavier burden on the union than
does the usual rhetoric about the employer? Explain your answer.
CHAPTER 10: REVIEW QUESTIONS
1. What might the NLRB consider to be a breach of the good faith bargaining principle?
The “good faith” bargaining principle can be breached if:
a. The parties refuse to bargain.
b. The employer bargains directly with employees and not their representatives.
2. How does the NLRB review an unfair labor practice charge of surface bargaining?
The board reviews a charge of surface bargaining by use of a “totality test” which analyzes:
a. Prior bargaining history of parties
b. Parties’ willingness to make concessions
f. Unilateral changes made during negotiations
g. Unfair labor practices committed during bargaining
3. What is the Weingarten rule?
The Weingarten Rule is that employees are entitled to have a union representative present
For what purpose did the Supreme Court adopt the rule?
4. What are the “rules” employers and union organizers must follow during an organizational
campaign?
a. Employees may solicit union support on the employer’s property during off-work time.
b. Nonemployees may not solicit union support on employer’s property if there are other
ways to reach employees.
5. When is an employer illegally discriminating against employees based upon their union
activities?
6. What union activities are prohibited under the Taft-Hartley unfair labor practices provision?