76
CHAPTER 4: EXTRA CASES
Gissel Bargaining Order
Facts:
The union lost a representation election by a vote of 16 to 5, with 7 challenged ballots. The union charged
the company with unfair labor practices, and on the basis of the Gissel Bargaining Order, asked the
NLRB to order the company to bargain with the union anyway. The NLRB found unfair labor practices
and did so order. Although the company denied unfair labor practices, its appeal involved primarily the
Gissel Bargaining Order.
When an election is set aside because of unfair labor practices of the employer, the NLRB can
order the company to bargain with the union if the union has obtained authorization cards from a majority
of the employees in an appropriate unit.
The company contended that the union did not have enough cards; the union contended that it
did. There were four employees in dispute. The company contended that the unit consisted of 31
employees; the union, 29. The company also contended that 1 of the 16 authorization cards was invalid.
1. The union sought to exclude two members of the unit—one who was on sick leave and one who
performed clerical duties. It was the union’s position that although a member on leave would
normally be considered part of the unit, the company had instituted a new personnel policy
2. The company challenged the authorization card of one employee. In a Gissel case—because cards
substitute for a secret ballot election—the signatures on the card must be obtained only by proper
means. The company contended, on the basis of the employee’s testimony, that he was harassed
for two or three days before signing the card, that he repeatedly stated that he did not want to sign
Decision:
The court found that the two employees should have been included in the unit and that the employee’s
authorization card should have been excluded.
The evidence presented by the company on the validity of the employee’s sick leave was
overwhelming, as was proof that the other employee was essentially a line employee with minimal
clerical duties. The testimony of the employee regarding his authorization card was convincing and the
union did not refute it sufficiently.1
Questions for Discussion
1. If you were deciding this case, would you include the two employees in the unit total? Explain
your answer.
2. If you were deciding this case, would you have accepted the disputed authorization card?
3. In this instance, the union had 15 unchallenged authorization cards requesting an election but lost
by obtaining only 5 unchallenged votes. Discuss some of the factors during an election campaign
that could bring about this result.
Appropriate Unit
Facts:
The employer is an industrial food service contractor supplying food service to 19 cafeterias at 10 United
Aircraft Corporation locations. The employer considers these 19 cafeterias to be a single operating unit.
The unit has district headquarters where its administration is centralized. All facets of the food service to
these 19 cafeterias are identical.
The union sought to organize a collective bargaining unit composed of 3 of these 19 cafeterias.
These 3 cafeterias are located 5 miles apart, have a combined workforce of about 50 employees, and share
a manager. The National Labor Relations Board found the unit appropriate on the following basis:
2. The three cafeterias were grouped together as a cost center for accountability.
4. The cafeterias were 5 miles apart, whereas the other 16 cafeterias were 14 miles away.
Decision:
The court recognized that the National Labor Relations Board has primary responsibility in determining
78
over the complete integration of the employer’s managerial structure and labor relations policy. The cost
center referred to by the Board was merely an informational subdivision not indicative of financial
independence; the responsibilities attributed to the local manager were overrated. In fact, the labor
relations policy for all the cafeterias emanated from the district office. On the basis of these
considerations, the court overruled the Board’s decision.2
Questions for Discussion
1. The court felt geographic proximity was not enough to establish community of interest. If the
local manager had more control over employment issues, do you think the court’s decision would
have been different?
2. Why would the employer want the unit declared inappropriate?
3. Do you think the court prioritizes the criteria used by the Board in determining a unit appropriate?
By what standard?
Public Sector Bargaining Unit Determination
Facts:
The union in this case was recognized as the exclusive bargaining representative of a group of public
employees who worked in mass transit. The city appealed this finding because the bargaining unit
contained certain employees who the city claimed were supervisory and should not be included. The State
Department of Labor had reviewed this contention by the city and had found that those employees were
properly a part of the unit. A lower court reversed that finding and the union appealed.
Decision:
The court overruled the lower court and reinstated the Department of Labor’s finding. It pointed out that
the lower court had based its reversal of the Department of Labor’s decision on the fact that the
department had not followed its own procedures in determining which employees were supervisory. The
court stated that the lower court was wrong in requiring that those procedures be followed because, unlike
79
Department of Labor may have applied some type of past procedure in determining the supervisory nature
of the public employee, the state law merely excludes the employees in those three classifications who
maintain a confidential relationship with the director.3
Questions for Discussion
1. In this instance, state law did not mirror the National Labor Relations Act as to those employees
excluded from coverage. The court felt this was done intentionally to allow supervisory
employees in the public service to bargain collectively with the public employer. Why would a
state legislature take such a position?
2. A literal interpretation of this statute would allow a confidential employee whose job title did not
fall into one of those three categories, that is, deputy, administrative assistant, or secretary, to be
part of a bargaining unit which is bargaining collectively with an immediate supervisor. Should
the statute be read so literally?
Elections
Facts:
The union petitioned the National Labor Relations Board for certification as the bargaining agent for a
unit composed of the hospital’s nonprofessional service, maintenance, and technical employees. The
hospital objected to the unit as overly broad, but the National Labor Relations Board found the unit
appropriate and ordered the election to be held.
The union won the election, and the hospital filed objections to the election, charging that the
union did the following: offered economic inducements to employees who supported it by waiving
initiation fees; misrepresented to employees’ various conditions of employment and their rights in the
Decision:
The court noted that the Board has wide discretion in determining whether an election was conducted
fairly. The hospital must offer evidence of events from or about specific people and show that those
80
events tended to or did influence the outcome of the election. In this case, the union won by a wide
majority, so the influence would be very difficult to prove.
Offering to waive initiation fees for employees who sign authorization cards prior to an election
can invalidate an election unless the offer extends to those who join after the election as well. In this case,
the hospital said the offer was ambiguous, and therefore employees could have thought it was limited to
before the election. The court found some ambiguity but not enough to show an undue influence on the
outcome of the election.
Questions for Discussion
1. Do you think the court dismissed the union “misrepresentations” too quickly as campaign
propaganda?
2. Would the decision have been different if the union had just barely won the election?
3. An empirical study of union elections showed that 87 percent of employees who declared intent
to vote one way or another at the beginning of an election campaign actually voted that way. If
the campaign has so little effect on the election, why should the Board set an election aside
because of unfair election tactics?
Duty of Fair Representation
Facts:
81
Unions representing employees in the nonferrous mining industry engage in nationwide coordinated
bargaining. In this case, a negotiating committee representing four unions conducted negotiations for
employees of the corporation: Steelworkers, Laborers, Operating Engineers (collectively, AFL-CIO), and
the Teamsters. The four unions were jointly certified to function as the “Union” in negotiating and
signing an agreement. For years, the relationship between the AFL-CIO and the Teamsters had been
adversarial, forming the basis for incidents to come.
At the start of negotiations, the company made clear it understood that the negotiations would be
conducted on a joint basis. In addition, if and when it was informed by the spokesperson for the “Union”
(a member of the Steelworkers union) that an agreement had been accepted, that in fact a new agreement
On October 3, both the AFL-CIO and company representatives told Teamster officials and
pickets that their strike was illegal because a contract was in effect. The Teamsters told those officials that
their ratification meeting would be held as soon as possible, but until the Teamsters ratified the agreement
the pickets would stay. The ratification meeting was held October 3 in the evening. The contract was
ratified and the pickets removed.
Earlier on October 3, the AFL-CIO and company representatives had met to negotiate a strike
settlement (back to work) agreement. The Teamsters were neither notified of nor invited to the meeting.
The AFL-CIO proposed and the company accepted an agreement not to commence legal action against
the AFL-CIO unions, but the company reserved the right to act against any “individual union,” and to
discharge or discipline any employee who continued to strike after “… 9:30 p.m. on October 2.” The
Ratification Procedures:
AFL-CIO position: The NLRA does not require a union to give its members the right to ratify an
agreement it has negotiated. In effect, the Teamsters had the opportunity to vote on the agreement when
they voted October 1 not to continue the old contract. Their negative vote added to the AFL-CIO position
would still have resulted in a passed contract. The Teamsters had the same chance to vote on the contract
Teamster’s position: Once the decision is made to seek a ratification vote of members before entering an
agreement, the union must allow all unit members an equal chance to vote. The Teamsters’ October 1
vote cannot be counted as ratification. In fact, the agreement had not even been reached at the time of that
vote. No assumptions can be made as to how that vote would have come out if the agreement had been
82
Strike Settlement Agreement:
AFL-CIO position: The Teamsters were not disciplined because of the strike settlement but because they
were on strike on October 2 and 3 in violation of a no-strike clause in a valid agreement. The Teamsters
were given notice that a contract existed and that they were in violation of it.
Teamster’s position: When the AFL-CIO representatives met on October 3 to negotiate a strike settlement
Decision:
The court agreed with the Teamsters. The AFL-CIO had breached its duty of fair representation by not
allowing the Teamsters to vote on the contract before entering it; and for deliberately and unfairly
subjecting Teamsters to discipline for conduct they could not have known was in violation of a contract.5
Questions for Discussion
1. Did the AFL-CIO representatives violate their duty to fairly represent the Teamster members
when they did not allow them to vote on the contract before telling the company it was approved?
Why or why not?
2. Did the AFL-CIO representatives violate their duty to fairly represent the Teamster members
when agreeing to a strike-settlement that would automatically penalize them?
3. Could the Teamster representatives also be charged with violating their duty to fairly represent
the members of the AFL-CIO unions by calling the strike?
83
Types of Units
Facts:
The employer operates a chain of seven supermarkets within a 30-mile radius of its central office. One
store, the only one located in an urban area, unionized and asked for recognition. No attempt was made to
organize in the other six stores, all of which were located in small communities.
Evidence before the National Labor Relations Board showed that the employer’s central office:
1. determined the merchandise to be sold in the store and how it was to be displayed,
3. purchased all merchandise through selected vendors,
5. arranged for housing executives who exercised supervisory control over the operation of
specific stores,
6. received daily receipts from each store to be placed in the employer’s general bank
account.
In the important area of personnel practices, the Board found that the central office executives
hired most employees, although individual store managers hired part-time workers. The central office
handled almost all firing: Local managers could discharge an employee only for some outrageous activity.
Payroll records were kept at the central office and paychecks issued from there. Job classifications and
wages, fringe benefits, and wage increases were uniform throughout the seven stores and were determined
by the central office. Employees frequently transferred from one store to another.
Decision:
The court disagreed with the Board and found the unit inappropriate. Although the court recognized the
Board’s right to make unit determinations, it also stated that the Board must have substantial reasons for
doing so. In this case, no such reason was offered. The disruption caused by the interchange of
employees, some in the union and some not, would defeat the purpose of the National Labor Relations
Board in promoting industrial peace.6
Questions for Discussion
1. It was significant to the Board’s decision that employees of the six stores were not being asked to
unionize. If they had no interest in a union, why should the employees of the seventh store be
denied their right to select a bargaining agent?
84
2. Is the determination in this case that one store was not an appropriate unit for the benefit of the
employer only, or do all the employees benefit? How?
Protected Behavior
Facts:
Federal labor law protects an employee’s right to engage in a union organizing campaign on the
employer’s property as long as the employee is on his or her own time. Nonemployee union proponents
do not enjoy that same right. Wallace, an employee of Earle Industries, was fired for insubordination
because of the following incident.
A union organizing campaign was under way at Earle Industries when the Reverend Jesse
Jackson came to the plant to address the employees during their lunchtime. He and two union officials,
who were not employees at the plant, drove into the plant’s parking lot in a flatbed truck and Rev.
Jackson spoke from the back of the truck to the luncheon crowd. The union officials refused to leave
when told they were trespassing, and they were arrested. Jackson went toward the plant to ask plant
officials to have the union representatives released. Wallace was among the crowd accompanying Jackson
to the plant. Jackson entered the plant through the “Employees Only” entrance and was met by a plant
manager who asked him to leave. The manager told him he could reenter the plant through the Visitor’s
Entrance. According to the plant manager, Wallace told Jackson that the Visitor’s Entrance was locked
and encouraged him to bypass the manager and go to the vice president’s office. After a few exchanges,
Jackson did just that. All of this activity was captured by the news media on film. At the vice president’s
office, Jackson was again asked to leave and reenter through the Visitor’s Entrance. The vice president
then met with him and eventually the union officials were released.
Wallace was called in by management about a week later and asked to explain her actions. She
denied telling Jackson that the Visitor’s Entrance was locked, saying she had really been saying,
“clocked,” and was encouraging her fellow workers to make sure they were off of the clock. The
company fired her for insubordination and dishonesty, using the tape as evidence. She appealed to the
NLRB, and it ruled that the company had fired her in violation of federal law because all of the events
complained of were part of an organizing campaign and therefore the employer could not discipline her.
The company disagreed and appealed the decision to the U.S. Circuit Court.7
Decision:
The court reversed the Board, saying that Wallace’s actions, although undertaken in the context of union
activity, exceeded what an employer need allow: first, by bringing a nonemployee into the plant through
an “Employee Only” entrance, and then by ignoring the request of the plant manager to have Jackson
leave, Wallace undermined the employer’s authority in front of other employees and the news media.
Questions for Discussion
85
2. Do you think Wallace’s behavior toward the plant manager should have resulted in discipline?
3. Would the plant manager have diffused the situation by escorting the Reverend Jackson to the
vice-president’s office and ignoring the entrance violation?
86
CHAPTER 4: ADDITIONAL REVIEW QUESTIONS
1. What is the purpose and jurisdiction of the NLRB?
2. Summarize the rights of employees and employers as provided by the National Labor Relations
Act.
3. When are states totally preempted from regulation of the labor field, according to Supreme Court
decisions?
4. Define union security and explain its importance to labor leaders.
Union security refers to a union’s ability to grow and to perform its exclusive collective
bargaining role without interference from management, other unions, or other sources. An
5. Discuss why labor leaders have tried to repeal Section 14(b) (the right-to-work section) of the
Taft-Hartley Amendments since its passage in 1947.
87
CHAPTER 4: EXERCISE
Certification Election
Purpose:
To understand various factors that may be considered in determining bargaining units.
Task:
AmberCraft Toy Co. manufactures, sells, and distributes toys in eight Western states. They have the
following job classifications:
Administrators
Assembly-line workers
Inside sales
Managers
Truckers
Outside sales
Supervisors
Maintenance workers
Security guards
Clerical workers
Janitorial workers
AmberCraft has four manufacturing plants (with about 300 employees in each) located in
California (San Diego, Fresno, Oakland, and Fort Bragg). BEST union wants to organize the AmberCraft
employees in the San Diego location. AmberCraft has no previous union history. A plant manager largely
runs each location independently, but the central office in Fresno sets all personnel policies. The plant
managers conduct hiring and other labor activities.
1. Does the San Diego plant meet the 1995 NLRB rules for one employer-multiple location?
Rules:
1. No previous union—Yes
2. Do you believe the San Diego plant is an appropriate unit?
3. If BEST were organizing all four sites, what job classifications would be combined into the
appropriate bargaining units?
Either:
a. “All P&M” (production and maintenance) which would include all nonmanagerial (i.e.,
administrators, managers, supervisors)
b. One unit for each of the four sites with all nonmanagerial at each site
c. All four sites combined into:
2. Assembly line, maintenance