Table of Contents

I. Introduction to Labor Law ............................................................................................... 5

Two Models of Labor Organizing ................................................................................................ 5
We Can’t Eat Prestige .............................................................................................................. 5
Bread & Roses .......................................................................................................................... 5
Employment at Will ..................................................................................................................... 5
6 Points on Employment At Will .............................................................................................. 5
Unionization in the US– Statistical Overview .......................................................................... 6
Worker Collective Action ............................................................................................................. 6
People v. Fisher........................................................................................................................ 6
Vegalhan v. Gunter .................................................................................................................. 6
Overview of NLRA ........................................................................................................................ 7
Overview .................................................................................................................................. 7
Goals of NLRA .......................................................................................................................... 7
NLRB ULP Procedure ................................................................................................................ 7
NLRB Case-Load ....................................................................................................................... 8
Violations & Remedial Measures ............................................................................................ 8
The Representation Case ............................................................................................................. 8
NLRA § 9................................................................................................................................... 8
The R-Case ............................................................................................................................... 9
Election Petition ...................................................................................................................... 9
Flowchart of R-Case Procedure ............................................................................................. 11
Procedural Modernization & Ambush Elections ................................................................... 12
Obama’s Streamlining ....................................................................................................................................12
Ambush Elections ...........................................................................................................................................12
Appropriate Bargaining Unit ..................................................................................................... 12
Single-Site Units ..................................................................................................................... 13
Friendly Ice Cream Corp. ....................................................................................................... 13
Rule § 103.40 Appropriateness of Single Location Units ................................................................................13
Time-Bars................................................................................................................................... 13
Time Bars: Summary ............................................................................................................. 15
Non-Exclusive, Members-Only Recognition .......................................................................... 17
NLRA Coverage; Inclusions and Exclusions ................................................................................ 17
Employer Exclusions: ......................................................................................................................................17
Employer Inclusions:.......................................................................................................................................18
Employee Exclusions pg. 8-10 Ch. 3................................................................................................................18
Hoffman Plastic Compounds Inc. v. NLRB ......................................................................................................19

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 Mezonos Maven Bakery, Inc ..........................................................................................................................20

II. Protected, Concerted Activity .......................................................................................... 20

§ 7 of the NLRA .......................................................................................................................... 20
Protected Conduct vs. Unprotected Conduct ....................................................................... 20
NLRB v. Washington Aluminum Co. ...................................................................................... 21
Work Rules................................................................................................................................. 21
Work Rule cases..................................................................................................................... 21
ULP Cases .................................................................................................................................. 22
Orchard Park Health Care Center .......................................................................................... 22
NLRB v. Weingarten ............................................................................................................... 22
Weingarten Rights ................................................................................................................. 23
Concerted Activities ................................................................................................................... 24
Prill v. NLRB ............................................................................................................................ 24
Loss of §7 Rights ........................................................................................................................ 24
Allen Family Foods ................................................................................................................. 24
Bird Engineering .................................................................................................................... 25
Johnson Technology Inc......................................................................................................... 25
NLRB v. Jefferson Standard ................................................................................................... 25
Partial Strikes ............................................................................................................................ 26
Elk Lumber Co. (Slow Down Strike) ....................................................................................... 26
NLRB v. Fansteel (Sit In) ......................................................................................................... 26
Audubon Health Care Center (Partial Work) ......................................................................... 26
QuietFlex (Work Stoppage) ................................................................................................... 27
III. Organizing .................................................................................................................... 29
On-Premises Organizing Activity ............................................................................................... 29
Categorical and Presumptions Analysis................................................................................. 29
Step 1: Categorical ..........................................................................................................................................29
Step 2: Presumptions Analysis ........................................................................................................................30
Legal Consequences .......................................................................................................................................32
Rebutting or Dissolving Presumptions .................................................................................. 32
Republican Aviation v. NLRB .................................................................................................. 32
NLRB v. Northeastern University ........................................................................................... 32
Rules that Govern §7 and Employer Conduct ................................................................................................33
NLRB v. The Magnavox Co. .............................................................................................................................33
Non-Employee Organizers ......................................................................................................... 33
First Amendment Access to Private Property?...................................................................... 33
Harlan Fuel: Notes ................................................................................................................. 33
Babcock & Wilcox .................................................................................................................. 34

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 Lechmere v. NLRB .................................................................................................................. 34
McCullen v. Coakley............................................................................................................... 34
Frontier Issues: Political Expression by Employees; Hybrid Cases; Email .................................. 35
Eastex v. NLRB (Political Expression) ..................................................................................... 35
Hybrid Cases .......................................................................................................................... 35
Register-Guard (Email #1)...................................................................................................... 36
Purple Communications (Email #2) ....................................................................................... 36
Problems of Discrimination ............................................................................................................................37
Employer Responses to Union Organizing ................................................................................ 37
Two Models Regulating Employer Speech ............................................................................ 37
NLRB v. Exchange Parts (Ct. of Appeals)................................................................................ 38
NLRB v. Exchange Parts (SCOTUS) ......................................................................................... 38
NLRB v. Gissel Packing ........................................................................................................... 38
Midland National Life Insurance............................................................................................ 39
New rule minimizes litigation .........................................................................................................................39
Retaliatory Discharge & Refusal to Hire .................................................................................... 39
Essential Elements §8(a)(3) Retaliation Cases....................................................................... 39
Major Categories of § 8(a)(3) Retaliation Cases .................................................................... 40
Phelps Dodge Corp ................................................................................................................ 40
Edward G. Budd Mfg.............................................................................................................. 40
NLRB v. Transportation Management Corp. ......................................................................... 41
Wright Line Test..................................................................................................................... 41
Retaliatory Plant Closure and Runaway Shops ......................................................................... 42
Mass Dismissals ..................................................................................................................... 42
Transfer v. Relocation ............................................................................................................ 43
Adkins Transfer ...................................................................................................................... 43
Darlington Mfg. Co. ............................................................................................................... 44
Partial Closing v. Full Closing ..................................................................................................... 45
Weather Tamer, Inc. v. NLRB ................................................................................................. 45
The Boeing Case..................................................................................................................... 47
IV. Economic Weapons ........................................................................................................ 47
Right to Strike ............................................................................................................................ 47
Mackay Radio (Economic Strike) ........................................................................................... 49
Erie Resistor (Inherently Destructive).............................................................................................................50
Fleetwood Trailer Co., Inc. (Prefatory Recall) ........................................................................ 52
Note on Laidlaw Rights...................................................................................................................................52
International Paper (4 Factor Test for IDC) ........................................................................... 52
Comparatively Slight vs. Inherently Destructive.............................................................................................53
Examples of Inherently Destructive Conduct .................................................................................................53

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 Law of Waiver and No Strike Clauses ........................................................................................ 53
Gem City Ready Mix (§7 Waiver) ........................................................................................... 54
NLRB v. Great Dane Trailers (Inherently Destructive Conduct) ............................................ 54
Metropolitan Edison (Inherently Destructive Conduct) ........................................................ 54
NLRB v. Sands Manufacturing (No Strike Clause) .................................................................. 55
Maestro Plastics (NSC ULP Exception) ................................................................................... 55
Indianapolis Power & Light .................................................................................................... 55
Secondary Boycotts ............................................................................................................. 55
Policy Arguments Against Secondary Boycotts: ........................................................................ 56
Allied International ................................................................................................................ 57
Royal Typewriter.................................................................................................................... 57
Ally Doctrine (Royal Typewriter) ....................................................................................................................58
“Same Person Doctrine” ........................................................................................................ 58
AFTRA..................................................................................................................................... 58
Common Site ............................................................................................................................. 59
Moore Dry Dock..................................................................................................................... 59
General Electric...................................................................................................................... 59
Carrier Corp. .......................................................................................................................... 60
Markwell & Hartz ................................................................................................................... 60
Picketing & The First Amendment ............................................................................................. 60
Tree Fruits .............................................................................................................................. 61
Safeco .................................................................................................................................... 62
Labor Picketing & the First Amendment ................................................................................... 63
DeBartolo I ............................................................................................................................. 63

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 I. Introduction to Labor Law

Two Models of Labor Organizing

We Can’t Eat Prestige

Harvard HUCTW election campaign, union organizers set up a union vote. Grass
roots organizing campaign. This is an example of the NLRB method of organizing.

Bread & Roses

Outside professional organizer came to janitors and helped them conduct § 7
activities like a common situs strike at their employer. Analogous to Moore Dry
Dock. Shows modern union organizing among diverse service orientated professions.
More combative, union campaigners were arrested.

Employment at Will
● Rule: You can be fired at any time for any reason or no reason at all without
any notice at all. However, cannot be fired for an unlawful reason prohibited
by statutory scheme or public policy.

6 Points on Employment At Will

1. Initially a right for employee allowing them to leave at any time.
2. Invented whole cloth in 1880
3. US is one of the rare economies with employment at will
4. The “Stickiness” Problem
a. Default rule that can be legally K’d around but difficult to
b. Employment no longer permanent, courts have stated that
permanent employment is indefinite and therefore at will.
c. Additional consideration is needed to K around.
d. Most employees do not know that they are at will.
e. Employers do not normally fire workers for no reason
i. Social practice that most firings aren’t for no reason or a
bad reason.
ii. Popular perception that court will provide remedy.
1. Market force: emphasis on pay over security
(Collective Bargaining supports this)
2. Market failure: people don’t know
5. Spurs unionization
6. Issue of proof, unfair firings are often mixed with legitimate but minor
reasons.

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 Unionization in the US– Statistical Overview

Worker Collective Action

● Benefits
o Higher wages
o Better working environments
o Comradery
● Criticisms
o Individual K rights
o Effects on consumers and prices
o Effects on workers if prices become too high
o Effects on the employer and investment in their product
o Employer have right to profit
● Types of Collective Action
o Striking
o Picketing
o Unionization

People v. Fisher
Shoemakers were charged with conspiracy for forming an unlawful club and
combination agreeing that they would not make men’s boots for less than $1.
Holding: Efforts at bargaining, picketing, striking, setting wages were frequently
met with common law conspiracy criminal statute charges. Court fears that
journeymen might, by fixing their own wages, can regulate of all manufactured
articles.

Vegalhan v. Gunter
Employees at a manufacturing company in Boston went on strike and picketed in
front of the building. They used tactics such as threats to anyone who would cross
the picket line, persuasion, and social pressure. Employer sought an injunction for
intentional infliction of economic damage and injurious interference w/ contractual
relations (Tort)
Holding: Injunction was upheld because an employer has a right to engage all
persons who are willing to work for him at such prices agreed upon. Employees also
have a right to enter employment
Dissent (Holmes): People engage in acts that injury people’s economic rights all
the time. The question is which of these injuries should be privileged. Concept of
bargaining for better wages should be a privileged injury to the employer in the

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same way that free competition is justified when business lower prices to drive out
competition. Privileged Injury Theory.

Overview of NLRA

Overview
● Creates the NLRB which consists of 5 members appointed by the President
and confirmed by the Senate. All of the Board’s power is derived from NLRA.
● The NLRB consists of a general counsel (added after Wagner Act), regional
offices, administrative law judges, the 5 member board, and staff.
 Only the NLRB has a cause of action, no individual cause of action
 After investigation the NLRB issues a complaint
 Division of Advice handles tough cases that are appealed and overturned
 Goal: Settle case
 ALJ
o Not Article 3 judge, similar to regular trial but no discovery.
o Affidavits from testifying employees kept private except when case goes to trial
and employee testifies, at the end the ∆ employer will request affidavits.
 Statutory NLRB has two distinct functions:
o Prosecute and remedy ULPs
o Representative Elections

Goals of NLRA
1. Industrial Peace
2. Macro-Economic Stabilization
a. Stabilize competitive wage rates
3. Promote Collective Bargaining
4. Freedom of Association
5. Inequality of Bargaining Power
6. Industrial Democracy

NLRB ULP Procedure

A charge is filed with the regional NLRB Office and a Regional Investigation is conducted
(Case Name at this point will appear as charging party only. Ex. United Auto Workers Local
22). 180 day statute of limitations.
After investigation, the regional office issues a determination of Reasonable Cause or No
Reasonable Cause. This decision may be appealed in the Division of Appeals
If Reasonable Cause, General Counsel files a Complaint and there is a trial in front of an ALJ.
ALJ makes recommended findings and orders

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 Either party may file exceptions (appeal) if unhappy with the result to NLRB in Washington
DC. If not filed, exceptions are lost forever. Must be filed within 28 days.
NLRB will issue a decision either reversing or affirming (case name appears United Auto
Workers Local 22, N.L.R.B. No. 141)
Enforcement of the NLRB decision can be requested in Court of Appeals
Losing party can appeal to the Supreme Court

Note: The GC ALWAYS represents the position of the NLRB in the Court of
Appeals and in the Supreme Court.
Note: (1) The board order is not self-enforcing and the Board may have to seek an
enforcement order in the U.S. Court of Appeals and the GC will represent the
NLRB (NLRB v. Respondent) (2) If the 5 member board in Washington DC
dismisses a complaint, the charging party may seek review in federal court, and the
General Counsel will switch sides arguing that dismissal of the complaint was
appropriate.

NLRB Case-Load
 Number of R-Cases have lowered since 1980s as organizing campaigns move away from
Harvard elections towards Bread & Roses style
o Explosion in C-Cases alleging Union ULP supports this.

Violations & Remedial Measures

 Reinstatement
 Instatement
 Back pay

The Representation Case

Base idea: The union represents the employee based on a majority rule. The Rep
case is designed to determine if the union has majority representation.

NLRA § 9
(a) Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employees in such unit for the
purpose of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any individual

8
employee or a group of employees shall have the right at any time to present
grievances to their employer…

The R-Case
The U.S. uses an all or nothing system known as exclusive representation where
once a Union acquires majority representation of an appropriate bargaining unit
they have exclusive collective bargaining privileges for the entire unit, including
members who do not wish to be represented and those who voted against the union.
Employer must bargain with Union when, and only when, the union acquires and
demonstrates majority support. Begins as one of three petitions…
 Petition for Certification of Representative (RC)
o Filed in Can’t Eat Prestige
o Most common
o Employees/Union/Labor Group must show substantial interest among
employees (preferably 70+%, minimum to be processed 30%)
 Employer Petition (RM)
o Employer faced with demand for representation may challenge the union’s
majority
 Decertification Petition (RD)
o Filed by group of employees seek to challenge the union’s majority

Election Petition
 Representation Petitions
o Secret Ballot Election conducted by board leading to certification under § 9(c)
o Voluntary recognition & other non-Board proceedings
o Gissel bargaining order
o Recognitional Strike
o Successorship
The most common is a Petition for Certification of Representative (RC) filed
under §9(c)(1)(A)(i) by union seeking an election to prove majority status. Once a
petition is submitted showing at least 30% interest §9(c)(1) the Board’s power
requires a question concerning representation or QCR:
1. An employee, group of employees, or a labor organization within the meaning of the
Act (§2(5))
2. Claims to represent for collective bargaining purposes
3. A substantial number (“showing of interest” requirement; see §9(c)(1)(A)
4. Of employees within the meaning of the Act (see §2(3))
5. Who comprise an appropriate bargaining unit (see§ 9(b))
6. And who are employed by an employer (see §2(2))

9
7. The employer’s operations affect commerce (§2(7))
8. The employer lawfully declines to recognize labor organization (§9(a) and Gissel) and;
9. The petition is timely

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 Flowchart of R-Case Procedure
Flowchart of the R-Case Process

Filing of Petition,
Showing of Interest

Employer often challenges:

Regional NLRA coverage, appropriate
Investigation to bargaining unit, whether certain
Establish Existence employees are subject (changed
of QCR by Obama’s board)

Formal
Consent Proceedings –
Administrative
Proceedings Hearing,
Dismissal
Regional Director
Decision

Dismissal
Direction of
Election
Names and addresses
of eligible voters (but
not telephone or emails)
Only employee
information which the Excelsior Request for
union is entitled to. List Review by
After most of the Board
campaigning is done.

Election
(or Re-
run)
Election
)
Post-Election Obj- Certification of
ections, Resolution Results of Election
of Challenges
Challenges: specific
voter. Objection:
actual conduct of
election, conduct Collective Refusal to
may have affected Bargaining Bargain;
outcome. Commences § 8(a)(5)
Proceedings

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 Procedural Modernization & Ambush Elections

Obama’s Streamlining
Overall increase union access to the voters and to shorten formal election campaign
by weeks or months:
 Expedited scheduling of the R-Case hearing;
 Restriction on hearing to issues necessary to determine if election should be conducted
o Defers appropriate bargaining unit, employee eligibility
 Substitution of oral argument for briefing in many cases
 Electronic filing of case documents
 Expedited delivery of Excelsior list.

Ambush Elections
Rare in modern organizing. Unions typically notify the employer to charge them
with knowledge of the organizing campaign in case of ULP litigation. Moreover
modern campaigns rely on public expressions of worker solidarity to empower
workers.

Appropriate Bargaining Unit

Need not be the most appropriate unit, just an appropriate unit. The test is
whether the petitioned-for employees share a community of interest.
Factors include:
 Nature of employees’ skills and functions
 Degree of functional integration
 Common supervision
 Whether employer’s benefits and personnel management is centralized
 Common wages, benefits and working conditions
 Degree of contact
 Comprise distinct and homogenous group
There are three major issue-areas
1) Unit Scope
a. Refers to extent of the employer’s business that unit should occupy. Employer-
wide multi-plant, single plant, subdivision of a plant (craft unit) and even multi-
employer units.
2) Unit Composition or type

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 a. Refers to functional groupings. There are three special composition issues
i. Professional employees may not be included in mixed professional/non-
professional unless a majority of professionals vote for inclusion
ii. Skilled craft groups are sometimes entitled to be severed from larger
industrial units
iii. Security guards must be placed in a separate unit from other types of
employees.
3) Placement
a. Whether an individual employee should be placed in the bargaining unit, using
litigated on whether or not they are a manager.

Single-Site Units
The board adheres to two presumptions regarding this;
1) A petitioned-for employer-wide unit is appropriate
2) A petitioned-for single site unit of a multi-location company is appropriate.

Friendly Ice Cream Corp.

Employees at individual Friendly’s restaurant petitioned for representation but the
employer refused because the individual restaurant was not an appropriate
bargaining unit instead suggesting an employer wide unit. Eventually the regional
director certified the unit. This four-year delay weakened support for the union but
the core remained to bargain. Unit scope litigation is the classic case of justice
delayed being justice denied in many cases.

Rule § 103.40 Appropriateness of Single Location Units

This rule was not adopted but potentially useful analysis. A single site location unit
will be found appropriate provided:
1) 15 or more employees work there and;
2) No other location of the employer is located within 1 mile and;
3) Supervisor under § 2(11) of NLRA is present at the location regularly and substantially
Except under extraordinary circumstances as defined, CB Pg. 21 Ch. 18.

Time-Bars
Designed to insulate incumbent unions from constantly fending off competing
unions or decertification petitions.
1) Statutory/Election bar
a. Only time bar appearing within NLRA itself, §9(c)(3)

13
 b. 12 months, any petition filed earlier than 60 days before 12 months elapses is
thrown out, within that 60 day period they are barred from election until 12 mo.
c. Does not bar the Board from ordering a rerun of the original election if ULPs
and/or objectionable conduct is found.
2) Certification Bar
a. Union’s majority status is conclusively presumed in the first year, no QCR may be
brought.
b. This period begins on certification date (not the same as election date). Ex. Pg.
25 Ch. 18.
3) The Contract Bar
a. A valid, current, written collective bargaining agreement bars a QCR during its
term.
b. Not a literal/strict bar, contract bar is qualified by an open period near the
termination-date of every barring contract. Open period from 90th to 60th day
prior to termination date of the contract or prior to 3rd anniversary where
contract longer than three years. Healthcare swaps 120th to the 90th day
window.

14
 Time Bars: Summary

Type Triggering Event Duration & Effect

Statutory 12 months from election date. If no other bar is

(or Valid election held in effect, the Board accepts petitions filed within
Election) 60 days of the 12 month anniversary. A new
Bar election may not be scheduled until after the
(§ 9(c)(3)) election bar has run.

Certificatio Board certifies results 12 months from the date of the certification.
n Bar of an election Effect is the same as with statutory bar.

For CBAs up to 3 years in length, the contract

bar lasts for the term of the contract. For CBAs
with a term longer than 3 years, the contract bar
Union and employer runs until the third anniversary of the contract.
Contract enter a valid, written QCRs may arise during the “open period” which
Bar collective bargaining occurs shortly before expiration of the contract or
agreement the 3rd anniversary. A 30-day “open period” for
petitions occurs between the 90th and the 60th
day prior to the expiration of the contract bar or
3rd anniversary. (In health care, the open period
runs from the 120th to the 90th day.) A 60-day
“insulated period” (90 days in health care) runs
from the close of the “open period” to the
expiration of the contract bar; petitions may not
be filed during the insulated period

15
16
 Non-Exclusive, Members-Only Recognition
Commonplace outside the U.S. where employers may have several unions in their
workforce negotiating only on behalf of their members. This is legal under the
NLRA, but only in cases where it is a minority union and only voluntarily.

NLRA Coverage; Inclusions and Exclusions

Determining whether or not the NLRA covers is a three-part analysis:
1. Interstate Commerce Requirement
i) Constitutional: NLRA is an exercise of Article I of the Commerce Clause and the
authority of Congress to reach labor disputes is inherent in its authority to regulate
the flow of interstate commerce
ii) Statutory: Section 10(a) restricts NLRB’s power to enforce ULP provisions of the act
to labor disputes affecting commerce and Section 9(c)(1) restricts resolving of
representation issues to those affecting commerce. Section 2(6) & (7) defines
commerce and affecting commerce which are understood as co-extensive with the
full extent of Congress’ power to regulate.
iii) Discretionary Jurisdiction: Board has authority to decline or accept jurisdiction of a
claim that only has a limited and insubstantial impact on commerce (Section
14(c)(1)). Board has threshold dollar amounts to determine if effect on commerce is
substantial enough to exercise jurisdiction.
(1) Retail: $500,000 gross volume or substantial interstate business
(2) Manufacturing: $50,000 interstate commerce
(3) Hospitals: $250,000 gross annual revenue
(4) Newspapers: $200,000 gross annual revenue
(5) Law Firms: $250,000 gross annual revenue
2. Section 2(2) Definition of Employer: Any per person acting as an agent of an employer,
directly or indirectly, but shall not include the United States or any wholly owned
Government corporation, or any Federal Reserve Bank, or any State or political
subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. 151 et
seq.], as amended from time to time, or any labor organization (other than when acting
as an employer), or anyone acting in the capacity of officer or agent of such labor
organization.

Employer Exclusions:
Public Employers (Except Postal Service but still cannot strike)
Railway Labor Act Employers
Horse Racing and Dog Track Industries

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 Employer Inclusions:
Labor Unions
Hospitals
Non-Profits
Section 2(3) Definition of Employee: any employee, and shall not be limited to
the employees of a particular employer, unless this subchapter explicitly states
otherwise, and shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or because of any
unfair labor practice, and who has not obtained any other regular and substantially
equivalent employment, but shall not include any individual employed as an
agricultural laborer, or in the domestic service of any family or person at his home,
or any individual employed by his parent or spouse, or any individual having the
status of an independent contractor, or any individual employed as a supervisor, or
any individual employed by an employer subject to the Railway Labor Act
[45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is
not an employer as herein defined.

Employee Exclusions pg. 8-10 Ch. 3

Agricultural Workers
Domestic Workers
Individual employed by parents or spouse
Independent Contractors
Supervisors/Managerial Employees
University Professors (Yeshiva)
Lay Teachers employed by Church operated schools
Confidential Employees
Any person not working for a statutory employer.
Note: Must be working for a statutory employer to be considered an employee
under the Act.

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 All employees (in the everyday sense of the word)

employees not covered by the NLRA

who therefore do not possess § 7 rights

1. employees who 2. employees who 3. employees who 4. employees as

are excluded from are excluded are not covered to whom
NLRA coverage from NLRA under any collective
employees but have parallel coverage but labor statute – bargaining is
covered by the labor law the NLRA unionization forbidden by
NLRA protections under expressly or by efforts by such law – e.g.,
(“statutory another federal or implication employees are active-duty
employees”) state statute (e.g., preempts other legal but not military
railroad employees; jurisdictions from protected; personnel; public
state employees in extending them whether employees in
Massachusetts) union rights – collective North Carolina;
see, e.g., NLRA § bargaining self-employed
14(a) (states may actually occurs in workers subject
not grant a given case to antitrust
bargaining rights depends on the barriers (such as
to supervisors balance of the court-
working for economic power appointed
NLRA employers) lawyers in the
SCTLA case,
infra)

Hoffman Plastic Compounds Inc. v. NLRB

Joe Castro, an illegal alien, was laid off because he was engaging in organizing
activities. The ALJ found that Hoffman committed a ULP by laying Castro off, but
that backpay and reinstatement was not a remedy because of Castro’s illegal
statute. Castro filed exceptions and the NLRB reversed stating that backpay will
deter employers from hiring undocumented workers and it further NLRA policy.
Holding: Backpay cannot be awarded as a remedy to an illegal alien in the U.S.
Dissent: Awarding backpay actually helps deter employers from violating labor
laws. Not awarding backpay also can decrease labor costs of labor law violations w/
respect to illegal aliens, and increase incentives to hire illegal aliens
NOTE: Plain language argument is made by liberals in dissent and policy
arguments made by conservatives in majority

19
 Mezonos Maven Bakery, Inc
Mezonos Bakery, Inc.: Employer violated IRCA by hiring undocumented workers
w/o asking for verification of their status. Then discharged these employees for
complaining about unfair treatment. Employees sought backpay. The Board ruled
that Hoffman Plastics control regardless who violated the immigration laws.
Concurrence: Although controlled by Hoffman Plastics and no backpay could be
awarded, argued that Hoffman Plastics got it wrong and that employers should not
be able to use the IRCA as a shield from backpay. This is a form of unjust
enrichment and further undermines enforcement of the NLRA and chills the
exercise of § 7 rights.

II. Protected, Concerted Activity

§ 7 of the NLRA
1. Section 7 of the NLRA: Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, and shall also
have the right to refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment authorized by Section 8(a)(3).
● Section 7 rights create legal protection against the exercise of private power
of the employer to fire or adversely treat workers.
2. Section 8(a)(1) of the NLRA (Catch all provision): It shall be an unfair
labor practice for an employer to (1) interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7.

Protected Conduct vs. Unprotected Conduct

● Protected: By and large what §7 protects. Conduct against which other
private parties may not retaliate through self-help
● Unprotected: Conduct against which other private parties may respond with
any lawful form of self-help (typically discharge)

20
 NLRB v. Washington Aluminum Co.
An employer was held to violate the NLRA by discharging a group of unorganized
employees who walked off the job to protest extreme cold. The manager fired them
and even made comments encouraging them to do it.
Holding: The Board said this was concerted activity to protect the company’s failure
to supply adequate heat. This is protected under Section 7: “Employees shall have
the right to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection”. Thus employees do not necessarily lose their right
to engage in concerted activities under 7 merely b/c they do not present a specific
demand upon their employer to remedy a condition they find objectionable! §7
language is broad
The reasonableness of a worker’s decision to engage in a concerted activity is
irrelevant to determining whether a labor dispute exists or not

Four Takeaways of Washington Aluminum

● Workers do not need to be a union involved
● Workers do not need to be reasonable. Not for a judge to 2nd guess
● Workers do not need to make a demand. The demand can be a protest
● Employer cannot prevent §7 rights with a plant rule

Work Rules
 Sometimes the announcement of a work rule can violate 8(a)(1) even though there is no
victim
 The concern is the “chilling effect”. An employer cannot coerce or restrain Section 7
rights
 In a work rule case evidence that the reason an employer adopted a work rule was to
stop a union campaign is enough to make a claim of statutory violation
 Retaliation cases do require motive
● Motive is to punish someone for engaging in Section 7 activity

Work Rule cases

o Rule by employer that violates §7 rights
o Can be challenged on its face. No evidence of enforcement needed
o If rule was in place before union activity, it is privileged and not
subject to §7

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ULP Cases
● Employees not allowed to interfere, coerce, or restrain employees in exercise
of their §7 rights
● Prima Facie case
o Employee engaged in a §7 protected, concerted activity
o Adverse action against the employee
o Knowledge
o Illegal motive
● Retaliation case
o Employer discharges a worker for exercising a §7 right
o Proof of motive is usually needed
● Board does not look for ULPs, they are party initiated
● Charging party does not have to be the aggrieved party
o i.e. a union rep can bring the ULP for a member of the union
● The office then investigates the charge and if they find reasonable cause they
issue a complaint in the name of the GC
o 180-day statute of limitations for a charge
● If there is no complaint issued there is no judicial review. This makes the GC
appointment important
● If a complaint is filed, the NLRB represents the party
o Can file exceptions to the final decision
● The trial is similar to normal trials but with a few differences
o No discovery

Orchard Park Health Care Center

● Employees were fainting because the working conditions were so hot
● Two employees call the police to report the conditions. This was concerted
activity but the question is, was the activity protected?
● The acts were not protected by §7
o Actions were not to improve their standing as employees

NLRB v. Weingarten
An employee is entitled to have a union representative present at any investigatory
interview by the employer if the employee reasonably believes might result in
disciplinary actions. The employer’s refusal of a request for such representation
would violate NLRA Section 8(a)(1)
● Employer refused to let an employee have a union representative at a
discipline meeting
● The Board says this is a ULP

22
 Holding: The steward is protecting the employees AND the unions interest of
unjust punishment: “Requiring a lone employee to attend an investigatory
interview which he reasonably believes may result in the imposition of discipline
perpetuates the inequality the Act was designed to eliminate, and bars recourse
to the safeguards the Act provided ‘to redress the perceived imbalance of
economic power between labor and management”
● §7 right that an employee does not have to submit to a meeting if he has a
reasonable fear of being fired
● Limits
o Only if the employee asks for representation
o Applies only if there is a reasonable fear of being fired
o Employer doesn’t have to tolerate the union representative
▪ Can continue the investigation without the employee’s input or
the employee can interview without the union rep
● If employee has a Weingarten right and is fired the employer is liable for an
8(a)(1) violation
● Rule does not apply in a non-union setting (IBM case is the latest word)

Weingarten Rights
A) An employee may request the assistance of a union representative at any
interview conducted by the employer that the employee reasonably believes may
result in disciplinary action (“investigatory interview”). When assistance has been
requested, the ER commits an 8(a)(1) ULP if it insists on proceeding with the
interview without permitting the union representative to attend. The ER need not
bargain with the union representative, but the representative must be afforded a
reasonable opportunity to speak and ask questions. The EE herself must request
assistance

(B) An EE may not be disciplined or penalized for refusing to submit to or cooperate

with an unassisted investigatory interview. Any discipline or discharge of an
employee for requesting assistance or for refusing to continue with the interview
without union representation is a § 8(a)(1) ULP. Ladies’ Garment Workers v.
Quality Mfg. Co., 420 U.S. 276 (1975), a companion case argued with Weingarten,
holds that an ER violates § 8(a)(1) by imposing discipline or discharge upon an EE
who asserts Weingarten rights or refuses to be interviewed without union
representation

The NLRB extended these rights to nonunion employees, allowing them to have a
co-worker present at disciplinary interviews and permitting a brief pre-interview
consultation to familiarize the co-worker with the employees’ circumstances

23
(Materials Research Corp.). Subsequently, the Board overruled this and said the
rights don’t extend in a nonunion setting. (IBM)

Concerted Activities
● Needs to be at least 2 people
● Mutual aid and protection is different than concert
● Post Meyers compromise
o Full protection if you are a “trouble maker”- Inciting union activity
o Full protection for someone speaking on behalf of a group

Prill v. NLRB
● Employee had made complaints about a truck being unsafe
● Employee refused to follow employer directions
● Conduct was not protected by §7 since he was the only employee involved and
there was no concerted activity
● Board says concerted activities must involve other employees
● The Meyers Test
o Must involve 2 or more employees to be concerted or be one employee
seeking benefits on behalf of a group (group must authorize the action)

Contrast this situation with the one in Hoffman Plastics involving the illegal
immigrants
The Board decides not to reinstate a worker who complained to the police pursuant
to state laws but was terminated from his job anyway. Why is there protection for
illegal immigrants but not for something like this?

Loss of §7 Rights

Allen Family Foods

● Snowstorm case where the employees leave work early because the road
conditions were becoming poor despite repeated warnings from supervisors
they were not allowed to leave
● The employees did not formally protest so it was not a concerted activity
protected by §7
● We concluded that the 8(a)(1) discharge allegation of the instant charge should
be dismissed, absent withdrawal, in that the employees in this case
engaged in unprotected activity when they left work early because of
snowy road conditions

24
● Holding: In the absence of evidence that the employees left work to protest any
of the employer’s rules or policies, we concluded that the employees’ actions
indicate at most an attempt to set their own terms and conditions of
employment

Bird Engineering
● New rule that prohibited employees leaving campus for lunch
● Employees left anyway- Insubordination
● Employer says the acts were deliberate and not covered by the Act
● Holding: While there is some concerted action, this is NOT protected. These
employees did not engage in a strike. By following their pre-rule lunchtime
practice they did not participate in a legitimate protected exercise but rather
engaged in insubordination
● Thin line between protesting and setting your own terms as a worker
● Question: What if they went off campus and said, “we’re striking in protest of
the closed campus rule?”
● Washington Aluminum
● Difficult distinction between ignoring the rule and setting your own
terms and ignoring the rule and protesting under Section 7

Johnson Technology Inc.

● Employee posts a union sheet that is taken down
● Employee then uses company paper to make a new notice
o Supervisor takes the paper and says it is company property
● Holding: The Respondent violated Section 8(a)(1) by removing the union
meeting notice posted by employee by prohibiting him from posting union
literature on employee bulletin boards. We also agree that the Respondent
did not violate Section 8(a)(1) the supervisor told the employee that he could
not use company paper for preparing union notices
● It is not unlawful for an employer to caution an employee to restrict the use
of company property for business purposes
● Fact the paper was not worth much is not important

NLRB v. Jefferson Standard

● Protest going on
● Some workers make a leaflet attacking the employer
● Product disparagement
o Not protected by §7

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Partial Strikes
Partial strikes are not protected activities. Employees may either continue to work
and negotiate or strike, but they may not stay on the job and sporadically disrupt or
shut down the employer’s operations

Elk Lumber Co. (Slow Down Strike)

● Workers worked slower than they were capable of to protest a wage cut
● Principle: Cannot set own pace of employment
● Treated as outside §7
● Holding: Not concerted activity - To achieve this objective (change the pay),
however, they adopted the plan of decreasing their production to the amount
they considered adequate for the pay they were then receiving. This
constituted a refusal on their part to accept the terms of employment
set by their employer without engaging in a stoppage, but rather
continued to work on their own terms
● Pace of work is set by management
o If they had struck completely they would have been protected
o Cannot set your own terms/working conditions

NLRB v. Fansteel (Sit In)

● Huge resistance by employers to NLRA and NLRB
● Both parties have ULPs in this case
● Workers have a sit down strike and the employer calls the police
● Employers are allowed to use self-help but not employees
● Difference between taking over a plant and firing an employee
● What looks like a double standard is easier to understand when remembering
the employee is taking the employer’s stuff
o Looks different than a firing

Audubon Health Care Center (Partial Work)

● Nurses refuse to cover an open shift
● They keep covering their own stations but never formally protest
● Actions not protected by §7 since they did not walk off
● Holding: A concerted stoppage of work by employees is not protected under
Section 7 of the Act if it is conducted in an improper manner. A partial strike,
is not condoned by the Board
● While employees may protest and ultimately seek to change any term
or condition of their employment by striking or engaging in a work stoppage,
the strike or stoppage must be complete. Such conduct constitutes an

26
 attempt by the employees to set their own terms and conditions of
employment in defiance of their employer’s authority
● Rule: Partial strike, can’t refuse to do part of the work
● Footnote: Hospital strikes require advanced notice
o Doesn’t apply in this case since there was no union involved

QuietFlex (Work Stoppage)

● 10 factors the Board considers in determining which parties’ rights should
prevail in context of an onsite work stoppage
o The reason the employees have stopped working;
o Whether the work stoppage was peaceful;
o Whether the work stoppage interfered with production, or deprived the
employer [of] access to its property;
o Whether employees had adequate opportunity to present grievances to
management;
o Whether employees were given any warning that they must leave the
premises or face discharge;
o The duration of the work stoppage;
o Whether employees were represented or had an established grievance
procedure;
o Whether employees remained on the premises beyond their shift;
o Whether the employees attempted to seize the employer’s property;
and
o The reason for which the employees were ultimately discharged

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 SOME GROUNDS FOR LOSS OF § 7 PROTECTION

invalid means invalid purpose

• previously discussed – • previously discussed –

• sitdown strikes (Fansteel), with exceptions
(see Quietflex)
• partial strikes, slowdowns, concerted
refusals to accept overtime, quickie
strikes, concerted refusal to perform
assigned tasks (Elk Lumber)
• improving the quality of customer service
(Orchard Park); attempting to
replace executives and managers
• concerted activity designed to re-organize
the work process or control the pace
of work (Elk Lumber)

• serious strike misconduct1; • work • to be discussed or noted –

stoppage on-board a ship2
• concerted activity unrelated to the
• insubordination (Bird Engineering) interests of employees as employees
(Eastex, Harrah’s)
• appropriation of employer property
(Johnson Technology) • strikes aimed to force an employer to
accept the union’s position on a
• indefensible disloyalty; disparaging the permissive subject in violation of §
employer’s product or services 8(b)(3) (Borg-Warner)
(Jefferson Standard)
• midterm strike seeking to obtain
• “unduly disruptive” concerted activity modification of contract (see §
8(d)(4))
• to be discussed or noted –
• concerted activity to end-run the
• concerted activity that is itself an unfair bargaining representative and
labor practice. E.g., strikes that achieve separate bargaining
apply secondary pressure in violation (Emporium Capwell)
of § 8(b)(4)
• other – strike to obtain wage gains in
• strike in breach of a no-strike clause violation of war-time wage controls
(Sands Mfg.)

• other: lying; bad faith litigation

1
See Clear Pine Mouldings, 268 N.L.R.B. 1044 (1984), enf’d., 765 F.2d 148 (9th Cir. 1985), cert. den., 474 U.S. 1105 (1986).
2
See Southern Steamship Co. v. NLRB, 316 U.S. 31 (1942) (cited in Hoffman Plastic). But see Ahmed A. White, Mutiny, Shipboard Strikes,
and the Supreme Court’s Subversion of New Deal Labor Law, 25 Berkeley J. Employ. & Lab. L. 275 (2004) (definitive explanation of why
Southern Steamship was wrongly decided).

28
 III. Organizing

On-Premises Organizing Activity

1) Solicitation: Certain kinds of oral communication, passing out union membership cards,
or asking co-workers to sign a petition
2) Distribution: Classically means passing out leaflets/handbills
 Republican Aviation governs the rules of actions of employees in organizing
 Distinctions in time, working v. non-working
o Whether you’re “on the clock” or not is not a factor
o Break time is treated as your own time
o Employers have a presumptive right to prevent solicitation during work time if
the rule is in place before union activity
o Efforts to prevent solicitation during non-working time is presumptively illegal
o Employers can condition entry on the land

Categorical and Presumptions Analysis

Step 1: Categorical
Category is based around several factors:
1) The status of the speaker
a. Employee of the employer
i. On-shift: Republic Aviation; Off-shift: Tri-County Medical
ii. On-Site (employee regularly assigned to work at facility) Off-Site
(employee regularly assigned to work at different facility)
b. Union organizer or supporter (but not employee) (Babcock & Wilcox, Lechmere)
c. Employee of another employer on premise by invitation
2) The manner or form of the expression or intended expression
a. Buttons
b. Mere talk: Talk that invites no response or only tangentially related
c. Solicitation: Talk that invites response
i. Request to sign union card/petition: This is solicitation NOT distribution.
d. Distribution: (Stoddard-Quirk): passing out union literature other than cards
e. Picketing
f. Emailing (Purple Communications)
g. Social Media (evolving)
3) Location
a. Work Area (Peyton Packing, Stoddard-Quirk)
b. Non-work Area: cafeteria, locker rooms
c. Outside Area: on premise, but outside buildings, although work areas can be
outside

29
 d. Public or Customer Access Area: parking lot, shopping floor, hospital cafeteria
open to public
e. Patient Care/Access Area: In hospitals distinction is made between immediate
patient care or treatment areas and those not used for care but access given to
patients (hospital cafeteria likely an access area)
f. Public Sidewalk: 1st Amendment, § 7 conduct also protected by statute
4) Timing
a. Work Time: 9-5 hours employee expected to be working (Peyton Packing,
Stoddard-Quirk)
b. Working Hours: Not work time, includes breaks and lunch. Entire 9-5 period.
c. Off-Shift: Time outside working hours
5) Purpose
a. Organizational: Expression concerns pros/cons of unionization/collective
bargaining.
b. Political: See Eastex
c. Other Categories: Appeals to public for strike-support; informing the public;
secondary appeals e.g. asking consumers to boycott retailer.
6) The nature of § 7 rights being asserted
a. Direct Personal Non-Derivative Rights: individuals asserting their own § 7 rights
as employees. (Republic Aviation)
b. Derivative Rights: Individuals asserting § 7 rights of those to whom they wish to
speak or deliver leaflets. E.g. professional union organizer leafleting outside a
plant is said to derivatively assert § 7 rights of employees.
7) The nature of employer interest
a. Managerial Interest: Safety, production, discipline, image etc. (Republic
Aviation/ Eastex)
b. Property Interest: (Babcock & Wilcox, Lechmere)
c. Business Interest: Hybrid of managerial and property interest. (Tri County
Medical)
8) Type of business or industry
a. Hospitals & Health Care Institutions: (St. John’s Hospital)
b. Retail: (May Department Stores)
c. Restaurant
d. Remote/Inaccessible: logging camp, isolated resort hotel where employees
reside on premise.

Step 2: Presumptions Analysis

The NLRA has set a series of presumptions applicable to that case-type regarding
whether and to what extent employers may forbid or otherwise control on-premises
expression
 The Peyton Packing Presumption: Solicitation (Union cards would be here!)
o Working time is for work, ban on solicitation during working time is presumed to
be valid.

30
  This presumption can be broken by showing that the rule was applied in a
discriminatory fashion. E.g., girl scouts selling cookies was ok but union
talk is not.
o Likewise, a ban on solicitation during non-work time is presumed to be invalid.
 The presumption can be broken by an employer showing of special
circumstances based on legitimate managerial interest
 Stoddard-Quirk Presumption: Distribution
o In working areas at anytime and anywhere in the plant during working time, an
employer ban on distribution and leafleting is presumptively valid.
 This presumption can be broken by showing that the rule was applied in a
discriminatory fashion or with discriminatory motive.
o An employer ban on leafleting in non-work areas on non-worktime is
presumptively invalid
 This presumption can be broken by a showing of special circumstances
based on legitimate managerial interest.
 Restaurants, Department Stores & Retail Establishments
o An employer may enact and enforce broad no solicitation rules barring
solicitation in selling, public or customer areas even during non-work time.
 E.g. Retail workers in a customer access coffee shop may be banned from
soliciting even if employees are on break-time, at their own table and
cannot be overheard.
 The St. John’s Presumption: Hospitals
o Hospitals may ban solicitation, even on non-working time, in immediate patient
care areas. This includes union buttons.
o Absent a showing of disruption or other special circumstances a hospital
employer must allow solicitation on non-work time in areas that are not
immediate patient care areas even if patients and visitors have access. E.g.
cafeteria.
o Distribution must be allowed on non-working time in non-work, non-patient
care-areas.
 Buttons and Insignias
o Employer ban on wearing buttons, insignia and the like during working time and
in working areas is presumptively illegal.
o Hotels and restaurants may not forbid union buttons worn by uniformed
customer contact staff so long as it is tasteful and inconspicuous.
 Exception: If the button is inconsistent with the employer’s public image,
would alienate customers or contains offensive material.
 Public Image: Not matching uniform colors was significant enough
in Starwood Hotels & Resorts Worldwide.
 Hospital Exception: Hospital and healthcare institution workers may ban
wearing of even tasteful union buttons in immediate patient care areas,
even during non-work time.

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 Legal Consequences
Employees are fired, employers get their rule rescinded
No defense for an employer’s rule that is overbroad regardless of motive

Rebutting or Dissolving Presumptions

If a presumption of validity is broken, the employer’s rule will ordinarily be deemed
illegal. If a presumption of invalidity is broken, employer’s rule will ordinarily be
valid.
 Presumptively Valid
o Breakable if found to be discriminatorily applied or created with a discriminatory
motive. Suspicious timing indicates discriminatory motive.
 Presumptively Invalid
o Special circumstances can justify a broader no solicitation rule. E.g. union
solicitation causes raucous shouting matches disturbing work areas.
Note: If there is no prior ban on solicitation or distribution the employer may not
enforce the rule on an ad hoc basis. Even if the discipline/discharge would have been
valid (solicitation during work time in work area) the employer cannot without prior
rule. Employer must first promulgate a valid rule or at least provide fair notice.
Absent special circumstances promulgation or enforcement of rule in response to § 7
activity gives rise to an inference of illegal motive or retaliation.
Note: Employer may violate its own no-solicitation rule by forcing employees to
attend anti-union speeches during work time.

Republican Aviation v. NLRB

Employer drafted a rule that was in conflict before any union activity began.
Employee was handing out union application cards on his own time during
lunch periods. Employee was discharged for infraction of the rule. Three other
employees were discharged for wearing union buttons.
Holding: NLRB says this is an ULP under §8(1) and (3). Furthermore, establishes
presumption that any rule prohibiting solicitation on non-working time is presumed
invalid, unless special circumstances show the rule is necessary.

NLRB v. Northeastern University

Group of employees (9 to 5 union) want to use a particular room on campus for
meetings. Room is generally used by all school-recognized groups. 9-5 was denied
access to room. School offers to allow them to meet as individuals but not as 9-5
group.

32
Holding: Employer committed ULP because it denied access on basis of the group
exercising § 7 rights. Employer violated §8(a)(1) because the denial was based on
the group wanting to discuss wages, hours and working conditions.
● “Subterfuge” comment: If employees met as individuals (University would
allow that) but discussed the same topics it would be subterfuge.

Rules that Govern §7 and Employer Conduct

● Were the employees fired pursuant to a rule that was privileged?
o If they are then the firing is legal
● If employer can show an actual interference with work and that is what
preempted the discipline, then the firing is lawful
● These rules tend to incentivize rigid rules with rigid application
● Outside organizers
o Protected by the 1st amendment

NLRB v. The Magnavox Co.

Magnavox had a rule against distributing literature of any kind on its property,
including parking lots and non-working areas; employer argues that the right to
distribute was waived in the CBA.
Holding: The workplace is the appropriate place to give out union literature, and
the waiver of the right to distribute/solicit in a CBA is presumptively invalid. Union
cannot waive the rights of an anti-union group to campaign, this is a conflict of
interest. Incumbent union would simply waive all solicitation/distribution rights in
order to self-protect.

Non-Employee Organizers

First Amendment Access to Private Property?

Harlan Fuel: Notes
Yancey is a company town which all of the people work for a mine on the town’s
property. Town tried to prohibit union organizers from entering the property.
Holding: Property interest is not so broad in this case to prohibit union organizers
from visiting people at their homes; Tenants have the right to be free of interference
from their landlord and this includes the right to have third person who visit also to
be free of interference. This interference constituted a ULP because the employer
refused employees access to receive aid, advice, and information from others,
concerning § 7 rights.

33
 Babcock & Wilcox
Employer refuses to allow distribution of union literature by nonemployee union
organizers on company owned parking lot. The only public area was where the
parking lot crossed the main road (high traffic area). Board found for union saying
parking lot was the only safe & practical place for effective communication with
employees.
Holding: Non-employees do not have a right to distribute info on company property
and general rule against distribution on property is valid. Court does note that in
some cases the employer’s property rights may yield to unions where there
is NO other reasonable means of effectively communicating with
employees.

Lechmere v. NLRB
A store did not allow non-employee union organizers to put handbills on people’s
cars in the company parking lot. The union filed a charge against the store for not
letting them hand out union literature on the parking lot property.
Holding: The company did not commit a ULP and had the right to exclude union
organizers from distributing on the company’s property. The employees were not
completely inaccessible so the employer’s property interest trumps. Access to
employees is the critical hinge, not success in winning them over. Thomas
views this as narrowly as mere notice, White & Blackmun take this to actual
communication.
Dissent: White & Blackmun note that the court’s role should not be limited,
deference to the Board; actual communication with employees not mere notice that
organizing campaign is necessary to vindicate § 7 rights. Looks at alternative
means a fast factor NOT the exception to the general rule.
Note: Babcock exception only meant for special circumstances and is narrow.

McCullen v. Coakley
Massachusetts law created a 35-foot buffer zone around abortion clinics limiting
protestors and “sidewalk counselors” from speaking to women entering the clinic
within the buffer zone. The sidewalk counselors were attempting to exercise their
first amendment rights on public property.
Holding: The 1st amendment protects an individual’s right to disseminate their
anti-abortion message in the manner they regard as most effective.

34
Frontier Issues: Political Expression by Employees; Hybrid
Cases; Email

Eastex v. NLRB (Political Expression)

Employees wanted to hand out a union newsletter with information about the
federal minimum wage laws, union solidarity and the Texas constitution
amendment regarding right to work. Union sought to distribute during non-work
time in a non-work area, but the employer refused.
Holding: Distribution of the newsletter is protected activity because it concerned
information related to employment (minimum wage laws affect wages even if not
min wage employee). Political activity can still be protected activity and the
employer had no property interest since the employees were legally on the premise.
● Right-to-Work Law
o Texas was considering putting this is the state constitution
o Union wanted workers to vote against it
o Employer said this was already a non-issue and did not need to be
addressed
● Court rejects the employer’s argument
o The rise in the minimum wage and the other political postings in the
newsletter would have an effect on the union

Hybrid Cases
Off Shift Employees (Tri-County Medical)
 Greater connection to employer than professional union organizer
 Distinguishable from on-shift employees because they are not invited,
expected, or required to be on premise.
Rule from Tri County Medical: Employer rule denying off shift employees access
to the premise is presumptively valid only if:
1) Limitation of access is solely with respect to the interior of the plant or other
working areas
2) The rule is clearly disseminated to all employees; and
3) The rule applies to all off shift employees seeking premise-access for any
purpose.
4) Rule can be expanded to non-working areas on showing of legitimate business
reasons. See table below.

35
 managerial interests ← ambiguous → property interests

(may be asserted against [traditionally deemed (may be asserted against

non-derivative § 7 rights managerial interests; derivative § 7 rights of
of employees of the more recent case law non-employees of the
employer) slides them into the employer)
“property interest” column

“Business Reasons”
• employee discipline • security of persons, • exclusion of strangers
property with or without cause;
• maintaining production right to act “arbitrarily”
and productivity • traffic control with respect to one’s
property
• safety
• privacy and comfort of • defeating the union
• avoid littering residents, if any (if, e.g.,
the employer is a hotel; or,
• public image if the employer and family
members live on the
premises)

Register-Guard (Email #1)

Employer has a rule against employees using the email system for “non-job related
solicitations.” Employees were disciplined for three e-mails. One email had to do
with general union information and the other two e-mails were soliciting employees
to join the union. Can an employer prohibit § 7 activities on an email system? Did
the employer lose the privilege to have a general rule against solicitation in email
because of discrimination?
Holding: An employer has the right to prohibit § 7 or union solicitation on
their email system even while allowing charity, commerce or faith based
groups to solicit. It is discriminatory to allow one union access while
denying other unions access. The bolded part of this holding is not overruled in
Purple.

Purple Communications (Email #2)

Overrules Register-Guard’s ban on use of employer’s email system for § 7.
Individual employees had email accounts accessible at their work stations and on

36
their smartphones. Charging party filed a ULP claiming the electronic
communication policy (banning § 7 email use effectively) interfered with employee’s
choice in union election.
Holding: Email has grown more important to communication in the modern
workplace. Communication is at the heart of the NLRA. The workplace is the
natural gathering place and logical place for union discussion. Email is different
than telephones, faxes and bulletin boards that have a limited capacity. An
employee with rightful access to email system have right to use the email system for §
7 activities on no nonworking time.
 Presumption is rebuttable:
o Special circumstances necessary to maintain production or discipline
(managerial rights)
o Non-discriminatory rules to maintain production and discipline are ok.

Problems of Discrimination
● There are certain privileged rules
● Discrimination is the quickest way for an employee to lose a privileged rule
● Enforcement of the rule may distinguish discrimination
● Rule used to be (1970-2007) that the employer is free to bar all solicitation,
but it can’t allow solicitation by some and not others (Register Guard)
● If discrimination is along §7 lines then it is discrimination and unlawful
● Lines drawn between charitable and other activities and union activities
(Purple Communication dicta about other situations)

Employer Responses to Union Organizing

Section 8)c: The expressing of any views, argument or opinion, or the
dissemination thereof, whether in written , printed, graphic or visual form, shall not
constitute or be evidence of a ULP under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefits.
 Protects the employer’s (and union’s) first amendment rights, unless the
speech contains a threat of discipline/punishment or a promise of a benefit.

Two Models Regulating Employer Speech

 Political Election Model
o Union seen as similar to a political election with the union and
employer competing for votes
o Employees have right to hear both sides
o This model comes from Exchange Parts Court of Appeals.

37
  Economic Vulnerability Model
o Unions, employees, and employers are not on the same bargaining
plane
 One of them can take away a worker’s pay
o Employees know the danger they are in and without a union they are
“at-will”
o “Fist in the velvet glove”
o This model is more likely to find interference with employee rights.

NLRB v. Exchange Parts (Ct. of Appeals)

Employer announces new benefits: birthday holiday, holiday overtime pay and more
flexible vacation time during a representation election.
Holding: This conduct did not amount to coercion, interference or restraint of
employees voting in election. Employee benefits were offered unconditionally and
permanently. This an example of the political election model.

NLRB v. Exchange Parts (SCOTUS)

Reversed the Court of Appeals. This is coercive conduct because the employees are
making rational calculations about their job security and future. The close timing of
the increased benefits and the election could definitely coerce an employee to vote
against a union when they are concerned about pleasing the employer and keeping
their jobs.
● Case looked at under the Economic Dependence Model
● Employer engaged in a ULP
o Prediction of the consequences of a union were threats that could
dissuade employees from voting for a union
● Point of the union is to obtain power so employees do not have to count of the
employer
o Power dynamic

NLRB v. Gissel Packing

The employer launched an anti-union campaign equating unionization to
guaranteed shutdown of the plant. The Board and 1st Circuit found that the
employer’s words reasonably tended to convey to the employees the belief or
impression that selection of the Union would lead to plant closure. Thus under the
totality of circumstances, the petitioner’s activities constituted a violation of §
8(a)(1).
Holding: In balancing the Employer’s 1st A rights and the § 7 employee rights the
employer is free to communicate; (1) general views about unionism or specific views

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about a specific union so long as the communication does not contain a threat of
reprisal or force or promise of benefit. Furthermore, employer may predict what he
believes will happen so long it is carefully phrased on the basis of objective fact to
convey an employer’s belief as to demonstrably probable consequences beyond his
control.

Midland National Life Insurance

Election objection where the results of the vote were tied. 3 alleged campaign
misrepresentations by the employer. Hollywood Ceramics is the prior standard for
elections (substantial departure from truth) which the Board rejects.
Holding: Workers are smart enough to tell what is propaganda, no need to regulate
campaign literature. Only time the Board will regulate propaganda is if employees
cannot tell i.e. forgery. (Forged Document Exception)

New rule minimizes litigation

● Rule encourages predictability, ease of application, less of a worry you’ll get
bias, expeditious resolution
● Unions have not argued for the HC rule since because delays are harder on
unions

Retaliatory Discharge & Refusal to Hire

Section 8(a)(3)
● Prohibits discrimination
● Prohibits retaliation against employees who engage in union activity or a §7
protected right

Essential Elements §8(a)(3) Retaliation Cases

1) Union activity or other § 7 protected, concerted activity by employee or exercise of any
§ 7 right.
2) Discrimination by employer against employee
a. Any detrimental change in employment
b. Any treatment different than employee not engaged in § 7 activity.
3) Employer knowledge of the employee activity
a. Hard to prove in practice
b. Employer just has to believe protected activity occurred to show knowledge
4) Retaliatory, anti-union or unlawful motive.
a. Motive must be based on union or other protected activity
b. Chilling effect is not enough to satisfy retaliatory intention
c. Must show general motive to suppress union activity
d. Most difficult element to prove.

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 Major Categories of § 8(a)(3) Retaliation Cases
1) Classic Retaliation
a. GC brings forward prima facie evidence that the discipline or discharge was
motivated by anti-union animus and the employer does not assert any legitimate
business reason to counter. Easy case.
2) No Reason/Subjective Reason
a. Difficult or impossible for GC to rebut absent a showing of an actual
discriminatory reason.
3) Pretext Cases
a. Employer asserts a legitimate business interest for discharge but ALJ finds that
the asserted reason is:
i. False
ii. Not relied upon (employer long knew Bob came in late but took no
action)
b. But still does not have an actual illegal motive.
4) Pretext Plus Case
a. GC rebuts employer’s stated reasons for firing the employee and submits
independent prima facie evidence of illegal motive.
5) Dual or Mixed-Motive Cases
a. Fact-finder concludes that the employer possessed and acted upon a
combination of legitimate and illegal retaliatory reasons.

Phelps Dodge Corp

Important holdings for our course are;
1) Employer violates §8(a)(3) by refusing to hire a job applicant because the latter has
engaged or intends to engage in union activity.
2) Board has authority under § 10(c) to order employer to offer the discriminate the job
(instatement)
3) Board is also authorized to order instatement even if he/she obtained substantially
equivalent employment elsewhere and;
4) Discharged employees and rejected job applicants who claim retaliation under §§8(a)(1)
and/or 8(a)(3) must mitigate any future back pay award by making reasonable efforts to
seek alternative employment during processing of case.

Edward G. Budd Mfg.

Employee had a history of drinking on job, brought woman (prostitute) onto
premises, lots of absences, punching other employee’s timecards etc. Activities were
tolerated by employer prior to union involvement. Seen by employer talking with
union. Subsequently, fired.

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Holding: Court of Appeals upholds Board’s decision ordering reinstatement
because employer, even though they could have previously fired employee, only now
fired him because of union activity. Clear discrimination.

NLRB v. Transportation Management Corp.

Employer fired an employee stating that he was taking coffee breaks at home and
was leaving keys in the bus overnight. Employer fired the employee after he began
passing out union cards.
Holding: The GC must establish a prima facie case that protected conduct was a
motivating factor in action taken by the employer at which point the employer
has the burden of proving that the action would have been the same even in absence
of the protected conduct.
TIP: Central issue in discrimination cases is whether the employer acted with
improper motive, which usually requires drawing inferences from circumstantial
evidence.
Other bus drivers did the same thing without being disciplined. Court looks to what
would have happened absent union activity and/or rebutting illegal motive
evidence.

Wright Line Test

● Test for determining motive in a discrimination denied case
o Can apply to non-union cases
● So long as one of the reasons for the discharge was anti-union the employee
wins unless the employer would have done the “same thing” if there was no
union activity
● General Counsel of the Board has the burden of proving that one of the
reasons for discharge was unlawful
o If judge thinks union activity had no factor on the firing the employer
wins
o If the judge is unsure the employer wins because the burden has not
been met
o Judge concludes anti-union thoughts played a role in employer firing
▪ Employer can still win if it is proven they would have done the
“same thing” without union activity
o Judge convinced union activity played a role but concludes the
employer would have done the “same thing” anyway the employer wins
▪ Partially motivated by union activity doesn’t matter
o Judge can decide if the employer would have done the “same thing”
▪ Burden of persuasion is not satisfied
● To show bad motive from an employer:
o Timing

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 ▪ Often the heart of cases
o Abruptness
o Perceived variation from the norm
o Coincidence of other ULPs
o No reason for discharge
o Change in the reason for discharge
● Cases that need the Wright Line test is where the employer does have a
reason and results in a mixed motive case
● Pre-text and mixed motive are different
● Consistency in punishment helps an employer’s case
● §10(c) is an employer’s best argument
o Reinstatement is prohibited if an employee was fired for cause
● Critiques:
o Assumption that things were different
o Fallacy of the hypothesis
o “But for” cause

Retaliatory Plant Closure and Runaway Shops

Mass Dismissals
1) Total Closedown (Darlington)
a. Employer goes completely out of business.
2) Partial Closedown
a. Employer terminates some of its operations but remains in business. Examples:
i. Multi-plant employer shuts down one location permanently
ii. Single-plant employer shuts down a product line
3) Conditional Closedown
a. Employer announces that it might go out of business at a future time if a certain
event occurs
4) Transfer of Work
a. Employer relocates part of its work from one branch or facility to another. Work
previously done continues to be performed, but some or all at a new location.
5) Plant relocation; Runaway Shop
a. Employer entirely shuts down an operation and then commences to perform
that operation at a new facility somewhere else. Can be total or partial.
6) Subcontracting
a. Employer K with independent company to perform a portion of the work done
by its own employees, sometimes transferring employees to new company.
7) Steering

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 a. Company’s decision where to perform new business may raise § 8(a)(3)
questions. For example an employer might steer new business away from its
unionized plant in Detroit and toward its non-union plants in the Sunbelt.

Transfer v. Relocation
In a “pure” runaway shop case, the employer shuts down and abandons a
unionized facility and reopens, sometimes with a new corporate identity, at a
distant or foreign location; the purpose is to escape the union. This is a classic
form of § 8(a)(3) retaliatory conduct. To make out a runaway shop, however,
the GC will have the burden of proving antiunion motive. The analysis will follow
the Wright Line template. A relocating employer can avoid liability either by
rebutting the GC’s illegal-motive evidence and/or by going forward with its own
evidence that the relocation would have occurred anyway for legitimate reasons

Plant Closing: An employer’s prediction, even though sincere, that unionization

“will or may” result in closing the plant is coercive, UNLESS the likelihood of
closing was capable of objective proof

● An employer has the absolute right to go out of business for any

reason, including antiunion hostility
● Statements based on objective facts of decisions already made
– reciting a history of closing stores for “economic” reasons after successful
union org, or predicting

Adkins Transfer
Union started discussing contracts with the employer (pretty big pay raises…75
cents to 1.25 an hour)

● Employees fired. Simply a question of cost, it’s now done on a job by job
basis
● Trial: ULP
● The Board Rules the other way
● Holding: that the discharges established a prima facie case that the
dismissal violated Section 8(a)(1) and (3) of the Act for the reason that the
employees would not have been dismissed if they had not joined the union,
and had not sought, to exercise the rights of union membership
● Case goes to the Supreme Court. Holding: Reversed back to the ruling
of the initial trial
● A company may suspend its operations or change its business
methods so long as its change in operation is not motivated by the
illegal intention to avoid its obligations under the Act. An employer

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 may discharge or refuse to reemploy one of his employees for any reason, just
or unjust, except discrimination because of union activities and relationships,
and the controlling and ultimate fact which determines an issue of the kind
here presented is, what was the true reason back of the discharge
● The fact that the workers were union members was only a coincidence.
Not the reason behind the discharge, the reason was that the union
wage scale was too high

The Mr. Potter Rule: In other words, every reason the employer gave for
discharging the employees is that they engaged in core, § 7 activities, that they
would continue to do so in the future, and that this would work to the employer’s
disadvantage.

Darlington Mfg. Co.

Voted yes on a union. Closed the plant, “if the union wins, we’re closing”

Violated §§ 8(a)(1) and (3) of the National Labor Relations Act by closing its plant,
and §8(a)(5) by refusing to bargain with the union after the election

Board: Employer did this out of anti-union animus. Violates 8(a)(3)

Appellate Court: Set aside the order. “A company has the absolute right to close out
a part or all of its business regardless of antiunion motives.”
SC Holding:
1) “We hold that so far as the NLRA is concerned, an employer has the absolute
right to terminate his entire business for any reason he pleases, but we
disagree that such right includes the ability to close part of a business no
matter what the reason.”
2) If the employer is part of an integrated enterprise with multiple business
locations or divisions, it may inflict substantial harm on those of its
employees who exercise § 7 rights unless it can be shown that the employer
did so with the intention of chilling union activity by other employers in some
other place.
π says: this is like a discriminatory lockout, which is prohibited
Why not? – discriminatory lockouts are meant to destroy the bargaining by using
economic leverage. But a complete liquidation of a business yields no such future
benefit for the employer. It may be motivated more by spite against the union than
by business reasons, but it is not the type of discrimination which is prohibited by
the Act.
Flip this – the EEs can go out on strike… what if they wanted a mass-quitting?
They could just walk away… just out of spite, that’s fine. This action negates any
future economic benefits

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Partial Closing v. Full Closing
The closing of an entire business, even though discriminatory, ends the employer-
employee relationship; the force of such a closing is entirely spent as to that
business when termination of the enterprise takes place. On the other hand, a
discriminatory partial closing may have repercussions on what remains of the
business, affording employer leverage for discouraging the free exercise of § 7 rights
among remaining employees of much the same kind as that found to exist in the
‘runaway shop’ and ‘temporary closing’ cases

- And there are NOT remedies available here!

Darlington announces two major holdings. First viewing the record as indicating
that Darlington was an independent unit that closed down entirely (“total plant
closedown”), the Court held that:

“When an employer closes his entire business, even if the liquidation is

motivated by vindictiveness toward the union, such action is not an
ULP.”

The Court’s second holding treated the record as indicating that Darlington was but
one unit in the Milliken conglomerate and that therefore what occurred was a
“partial closedown.” On that assumption, the Court held:

“A partial closing is an unfair labor practice under § 8(a)(3) if (1)

motivated by a purpose to chill unionism in any of the remaining
plants of the single employer and (2) if the employer may reasonably
have foreseen that such closing would likely have that effect.”

Weather Tamer, Inc. v. NLRB

An employer company was held by the court in Weather Tamer to have violated 29
U.S.C.A. § 158(a)(1) in the course of a union organizational campaign, during which
work was coming to a halt and employees were being laid off, based in part on the
company president's statement in a speech to employees. The court stated that
under the circumstances, the clear implication to the remaining employees was that
their continued employment and the plant's eventual reopening were contingent
upon a vote against the union.

A partial closing such as this must be evaluated according to the standards of

Darlington. Darlington establishes that an employer has an absolute right under
the NLRA to liquidate his entire business for whatever reasons he chooses, even if

45
his motivation is vindictiveness toward a union. A partial closing motivated by anti-
union purposes is also not an unfair labor practice unless a runaway shop is
involved or the employer uses the closing to chill unionism in his other businesses.
Both exceptions were found to be present in this case. We are convinced, however,
from our review that there is not substantial evidence in the record to support such
findings.

If no transfer of work has taken place or if there is a transfer of work,

but the decision to transfer is made for business reasons unrelated to
union activity at the closed plant, then there has been no unfair labor
practice

The Board and court were unsure whether Weather Tamer was a case of a runaway
shop, a partial transfer or partial runaway, and/or a partial plant closing. In a
classic runaway shop, the employer closes its sole facility A and reopens the
business at a new facility B. In a partial transfer or partial runaway, the
employer maintains two facilities simultaneously. In a classic partial plant closing,
the employer controls several facilities simultaneously. It entirely and permanently
closes one facility with the purposes of sending an antiunion message to the workers
at its other facilities. The lines between these categories often blur. To be safe,
both tribunals analyzed the case under both the standard Wright Line test (which
applies to runaways, and partial transfers or partial runaways) and under the
special Darlington Manufacturing test, which governs partial plant closing cases.

The court found that the Board failed to make out a case under the Darlington test.
It sustained the Board’s conclusion that the employer committed a ULP at the
Athens plant when a supervisor told an employee there that the Tuskegee plant had
been closed because of the pro-union vote and threatened that the same would occur
at Athens if the employees there supported a union. However, the court concluded
that, “nothing in the record indicates that Weather Tamer conducted a systematic
campaign to chill unionism at its other plants”. But nothing in Darlington requires
the GC to show evidence of a “systematic campaign.”

The court also found that the Board’s evidence failed to pass muster under the
Wright Line test, specifically that the evidence did not establish unlawful motive.
The court’s approach was that, “unlawful motivation is not lightly to be inferred.”
The court held that none of the following provide substantial evidence of illegal
motive –
• The employer’s vocal anti-union stance,

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 • Collateral unfair labor practices,
• The coincidence of timing that the transfer of work occurred during the
run-up to the election,
 The absence of evidence that the employer was dissatisfied with the economic
performance of the closed plant prior to the union vote, or
• Management’s failure to inform the employees of the decision to close the
plant.

The problem with the court’s argument is that the Board never claimed that any
one of those indicators establishes illegal motive. The Board contended that the
necessary evidence was provided by the cumulative presence of all of these
indicators. Indeed, based on the record as a whole, the Board found the employer’s
conduct to be so egregious that it actually ordered the employer to reopen the
Tuskegee plant.

The Boeing Case

States absolute evidence that the reason for the action is union activities! –
but they have given a business focus justification

IV. Economic Weapons

Right to Strike
● Difference between striking (work stoppage) and picketing
● Can picket employers without striking but it is uncommon
o Usually go hand in hand
● Before the New Deal employers could bring tort claims against strikers
● The Wagner Act granted an affirmative right to strike
o Federally protected right to strike
● Four Categories of Lawful Strikes
o ULP
o Safety
o Sympathy
o Economic
● Mixed economic and ULP strikes are treated as ULP strikes
● ULP
o Strike to protest an employer ULP
o If basis of the strike is not a ULP it is treated as economic
o Test is a “partial motive test”
▪ As long as one of the reasons is a ULP it is a ULP strike

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 o Employer cannot take adverse action against the strikers but can hire
temporary fill ins
o At the end of the strike the workers get their jobs
o 5-day grace period to rehire strikers before back pay begins accrual
o If employer does not bring back the workers within 5 days that is
another ULP
▪ Subject to back pay for anytime after the 5 days the workers are
not hired back

● Economic
o Usually a strike over terms of a K
o Also the residual category- If a strike does not fit in any of the other
categories it is treated as an economic strike
o Employer can permanently replace economic strikers
▪ Entitled to notice of openings
▪ Retain seniority
▪ Voting rights for 12 months
o Employer must rehire strikers UNLESS the employer can demonstrate
a legit and substantial business interest for not rehiring (Fleetwood)
o A worker is not permanently replaced until actually replaced
o Permanent replacement is an above the table tool
o Reinstatement follows seniority
▪ Can never follow union activism

Lawful Strike Unlawful Strike

1. ULP: A strike undertaken in protest of 1. Secondary Strikes

an employer’s unfair labor practice(s)
under the NLRA. Includes
abnormally dangerous working
condition strikes. Entitled to
reinstatement upon
unconditional offer to abandon
strike, violate 8(a)(3) and backpay
runs from 5th day.

2. Economic: A strike in support of a 2. Strikes in violation of a

union’s economic demands (wages, presidential order in light of a
other terms and conditions of national emergency
employment) and includes
recognitional strikes. Subject to
permanent replacement.

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 3. Sympathy Strike: A strike to support 3. Strikes in the public sector
another union’s or another set of
employee’s labor dispute. Most are
illegal secondary boycotts, but refusal
to cross a picket line is privileged

4. Safety Strike: A strike/refusal to

work because of dangerous conditions

Mackay Radio (Economic Strike)

FF: The employer told the returning strikers that it intended to let the
transfers/replacements stay full-time and that it would not displace a transferee
who wished to stay in San Francisco to make room for a returning striker.

- 5 strikers were not allowed back

- CHARGE: respondent had violated § 8(1) and (3)
o Claim: Filed a complaint charging that the respondent had
discharged, and was refusing to employ, the 5 men who had not
been reinstated to their positions, for the reason that they had
assisted a union and engaged in concerted activities with other
employees, for the purpose of collective bargaining and other
mutual aid and protection; that by such discharge respondent had
interfered with, restrained, and coerced the employees in the
exercise of their rights guaranteed by § 7

Discussion:

- There were pending negotiations for the execution of a contract touching

wages and terms and conditions of employment
o The argument confuses a current labor dispute with an ULP
defined in § 8 of the Act
o The strike was “advisable in view of the unsatisfactory state of the
negotiations” in New York (Strike was in San Fran)
- H: Their justification or lack of it, in attributing to respondent an
unreasonable or arbitrary attitude in connection with the negotiations,
cannot determine whether, when they struck, they did so as a
consequence of or in connection with a current labor dispute
o There was NO evidence the ER was connected with the ULP
going on in NY (which caused the strike)
- Nor was it an ULP to replace the striking employees with others in an

49
 effort to carry on the business
o It does not follow that an employer, guilty of no act
denounced by the statute, has lost the right to protect and
continue his business by supplying places left vacant by
strikers
o ER is not bound to discharge those hired to fill the places of
strikers, upon the election of the latter to resume their employment,
in order to create places for them

Discrimination Claim?!

YES: When the dust settled after the strike, the employer by its own count had
room for all of the strikers but five. The Board found that in selecting which five
strikers would be left out, the employer intentionally discriminated against union
activists. That is, the employer discriminated against union activists in determining
the “order of recall” to fill vacancies left after a strike. Mackay Radio holds that this
conduct, discriminatory recall, violates § 8(a)(3).

Rule: A rule that an employer does not violate the Act merely by hiring permanent
replacements during an economic strike. At the end of the strike, the employer is
only obliged to fill vacancies. If all of the strikers have been replaced, there are no
vacancies, and all of the strikers lose their jobs. Under Mackay Radio, therefore, an
employer may respond to a strike over wages and working conditions by
permanently replacing and causing job loss to all the strikers.

Erie Resistor (Inherently Destructive)

Q: Is it a ULP to extended a 20-year seniority credit to strike replacements and
strikers who leave the strike and return to work? Yes. It is an ULP under 8(a)(3) for
an ER “by discriminating in regard to tenure of employment or any term or condition
of employment, to encourage or discourage membership in any labor organization.”

Circuits: It is legal unless there’s a sinister motive

Facts: The company informed the union that it had decided to award 20 years’
additional seniority both to replacements and to strikers who returned to work.
- Many people who held out came back and lost their jobs because of this
- Examiner found that the policy was for legitimate economic reasons, not
for illegal or discriminatory purposes
- Board Reversed: Super-seniority is a form of discrimination extending far
beyond the employer’s right of replacement sanctioned by Mackay

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Holding: We think the Court of Appeals erred in holding that, in the absence of a
finding of specific illegal intent, a legitimate business purpose is always a defense to
an ULP charge. Cases in this Court dealing with ULPs have recognized the
relevance and importance of showing the employer’s intent or motive to
discriminate or to interfere with union rights
The employer in such cases must be held to intend the very consequences
which foreseeably and inescapably flow from his actions and if he fails to
explain away, to justify or to characterize his actions as something
different than they appear on their face, an ULP charge is made out
Can they infer motive from the action alone?
The Test: If we’re talking about discriminatory conduct, is it “inherently
destructive” of sec. 7 rights?
- The justice here pulls out a tort test: “Reasonably foreseeable”
- Can REBUT – This was a legit business action
o BUT whatever the reason may be, the conduct speaks for itself, have to face
the real consequences
o GC- “This combination of threat and promise could be expected to
undermine the strikers’ mutual interest and place the entire strike effort in
jeopardy
o Trying to separate strikers from non-strikers, discrimination
- The heart of the case/most important passage: Preferring one motive to another we
have to weigh the interest in concerted activities in the interest of the ER to operate
his business; Balancing
o Once you have everything on the table the Board should balance: In the
light of this analysis, super-seniority by its very terms operates to discriminate
between strikers and non-strikers, both during and after a strike, and its
destructive impact upon the strike and union activity cannot be doubted.

Mackay: Because the employer’s interest must be deemed to outweigh the

damage to concerted activities caused by permanently replacing strikers, it
does not mean it also outweighs the far greater encroachment resulting
from super-seniority in addition to permanent replacement
^This is Erie’s argument. We have a right to hire permanent replacements (Mackay)
but we need more than a right to keep them, we need to make them permanent
- How do they differentiate? There’s a permanent loss on those who
exercise/continue to exercise their section 7 rights
- This is one of the reasonably foreseeable consequences
- Erie v. McKay: Erie makes it seem like they WILL be permanently employed.
- Jr’s are given incentives to climb over the backs of the Sr’s which puts pressure on
the seniors to cross the line too! Seniority v. Section 7 rights
o You’re incentivizing competition within the unit

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Remand: Cir said there’s no possible way the reason could not outweigh the
protection of the strikers

Fleetwood Trailer Co., Inc. (Prefatory Recall)

● Duty to reinstate when jobs resume after shutdown- If jobs of economic
strikers are eliminated during the strike and are recreated after the strike
ends, the strikers are entitled to prefatory recall unless the employer can
show “legit and substantial business justifications” not to do so
● Fleetwood adds to McKay Radio- If you’re striking under legal conditions
(ULP) you can get your job back, or at least be first in line to get your job
back, if because of business necessities a job was eliminated you remain an
employee despite business changes

Note on Laidlaw Rights

● Laidlaw Rights: Duty to consider application- Failure to consider existing job
applications by strikers when vacancies do occur is discriminatory and a ULP
● An economic striker remains an employee entitled to preferential recall,
unless the employer can show a legitimate and substantial business
justification for declining to accord preferential recall rights
● If an employee becomes entitled to recall it must be full reinstatement
including benefits and seniority
● Preferential recall-rights extend indefinitely into the future, apparently
without time limit. However, the recall rights of an economic striker
terminate if he/she obtains and accepts regular and substantially equivalent
employment elsewhere. (The reinstatement-rights of ULP-strikers do not
automatically terminate upon acceptance of equivalent employment.)

International Paper (4 Factor Test for IDC)

Four factors from case law:
 Severity of the harm to the employees who exercised §7 rights and severity of
harm to §7 rights
 Temporal impact, that is, whether the conduct will have lasting or long-term
effects on the collective bargaining relationship and §7 rights
 Whether the employer’s action shows hostility to the process of collective
bargaining as distinct from exhibiting a harsh bargaining stance within an
overall acceptance of the collective bargaining framework
 Whether the employer’s conduct makes collective bargaining seem a “futile
exercise in the eyes of the employees”

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 Comparatively Slight vs. Inherently Destructive
If the effect is comparatively slight, the burden is on the employer to show
legitimate business reasons for decision.

Examples of Inherently Destructive Conduct

• When resuming operations after an economic layoff, refusing to hire any of the
former, union-represented employees to the vacant positions in their jobs, while
instead filling these places by hiring an entirely new workforce, represented by a
different union from which the employer thought it could get a better deal
• Refusing to rehire employees because they had previously served as union
stewards
• Adverse treatment of union officials based solely on their status as union officials
• Refusing to honor strikers’ unconditional offers to return to work where one of the
objects of the strike was to obtain recognition
• Conditioning individuals’ employment status on whether they continue to file
repetitive grievances
• Discharging union stewards who asserted their intent to be active representatives
for employees
• Treating strikers who returned to work as new employees for health insurance
purposes, assigning returning strikers to less desirable shifts, or otherwise
discriminating against returning strikers
• Repudiating a labor agreement upon reopening two plants closed for 2 weeks
pursuant to a corporate reorganization
• Refusing to hire employees who have a recent wage history of earning more than
30 percent of the employer’s starting wage
• In “salting” cases, requiring applicants to disclose union status and tender proof of
union consent to employment by a nonunion contractor; prohibiting employees from
marking application forms so as to reveal past union activity
Rule: Waivers of statutory rights must be clearly and unmistakably evidence either
in terms of parties’ bargaining contract or in nature of prior contract negotiations.

Law of Waiver and No Strike Clauses

● A no strike clause changes everything
● The clauses are creatures of K
o Won’t appear without a CBA
● If you are pre-K or between a K: There is no “no strike clause”
● No union: No “no strike clause”
● Strike with a NSC (Sands Manufacturing)

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 o Violation of a K
o Unprotected action
o Employer can get an injunction against the strike and is free to
fire/replace
o If a union sanctioned the unprotected strike they are liable for
damages
● ULP and Safety strikes are permitted under a NSC as long as there is no
“clear and unmistakable” waiver of them
● Cannot waive the free choice of a bargaining representative
● NSC cases are rare and usually occur when a union bets that a strike will be
viewed as a ULP strike and loses

Gem City Ready Mix (§7 Waiver)

Union waived full prestrike seniority on behalf of returning strikers in return for an
opportunity to end the strike and return to work. Under these circumstances it was
satisfactorily demonstrated that awarding top seniority to the two non-striking
employees and the strike replacement was a lawful implementation of a right
clearly understood by all effected.
Holding: Since discriminatory conduct carrying potential adverse effects upon
employee rights was proved and no evidence of a proper motivation appeared in the
record, the ULP is sustained. Court of Appeals erred by speculating legitimate
business reasons.

NLRB v. Great Dane Trailers (Inherently Destructive Conduct)

Issue: In absence of proof of an antiunion motivation, did an employer violate
§8(a)(3) and (1) when it refused to pay striking employees vacation benefits accrued
under a terminated collective bargaining agreement while it announced an
intention to pay such benefits to striker replacements, returning strikers and non
strikers?
Holding: Great Dane does not make any showing of a non discriminatory reason
for the vacation policy. Therefore the inherently destructive conduct test of Erie
Resistor governs, no requirement to show motive when conduct ID to § 7 rights.

Metropolitan Edison (Inherently Destructive Conduct)

Employer disciplined union officials more severely than other employees who
refused to cross picket line because it argued they had an affirmative duty to
prevent employees from breaking the no strike clause in the CBA.
Holding: This is inherently destructive of § 7 rights because it divides the interests
and loyalties of union officials between the employer and the union.

54
 ● No one would want to be an organizer
● They either side with the employer and lose respect or get punished
● Employer argues that they did not violate §8(a)(3) and the union waived statutory
protection by agreeing to the no strike clause
● Court rules that punishing union organizers more severely is “inherently
destructive”
o Interference with §7 rights
● The right to strike can be waived but it must be “clear and unmistakable”
● No showing in this case the union waived statutory protection

NLRB v. Sands Manufacturing (No Strike Clause)

● Major Takeaway: A strike in breach of a CBA (no strike clause) is not §7
protected

Maestro Plastics (NSC ULP Exception)

1) Does a CBA with a no strike clause waive the right to strike for economic benefits AND
their right to strike against ULP?
a. No, taking the contract as a whole there is no compelling expression that the
sought to waive ULP striking rights. Interpreting the K this way would be
contrary to congressional intent.
2) Does § 8(d) deprive individuals of their status as employees if within the statutory
period they engage in a strike against ULP?
a. No, the strike is not in regards to termination or modification of the CBA but
rather a ULP. This would prevent unions from striking at ULPs during
negotiation at their bargaining representative.
Notwithstanding doctrine of Sands Manufacturing and the provisions of §
8(d), a strike in breach of a typical no-strike clause is protected if the
strike was called in response to a serious ULP.

Indianapolis Power & Light

A broad “no-strike” clause likewise has been held by the NLRB to ban sympathy
strikes UNLESS the CBA or extrinsic evidence shows (clearly and unmistakably)
that the parties did not agree to the waiver of such strikes.

Secondary Boycotts
Secondary Boycotts: Don’t cross those picket lines, talk to the customers, or firms
with whom the employer does business

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10(l) – in certain cases once a charge has been filed the General Counsel MUST
investigate and if they find it’s valid, the GC must go to federal district court and
seek injunctive relief against the behavior immediately. (AND treat it as its top
priority over any case)

10 (l) and section 303 – the damages action, are the source of a double
standard – if there is a secondary boycott, relief is IMMEDIATE and you get a
private action of damages

Problem: targets of economic pressure

EEs can target primary employer, but prohibited if it’s aimed at the secondary
employer

Situation 1: union goes on strike… pickets outside of employers place… what does
that picket line attempt to do? Persuade customers and secondary firm not to do
business

 H: There will be secondary consequences when the target of the

pressure is the primary employer

Situation 2: strike… but instead of picket line, it goes to the place of business of the
secondary employer…

- NO. it has the same effect… the truck driver just never goes to… but this is
a classic unlawful secondary boycott that’s prohibited by law!

Policy Arguments Against Secondary Boycotts:

 “Keep the dispute in the family”
o Counter argument: wait… corporations cannot be distinguished like
this
 Or when all the work is being broken up and done by separate
entities… “ally doctrine.”
o AND employers are permitted to enlist the aid of others in this
struggle, aka, if there’s a strike, employers are permitted to hire
workers to replace
 Fairness to the secondary employer – it has no control over this dispute
o Counter- If the strike succeeds in shutting down business, that’s going
to drag secondary in anyway
o And the secondary DOES have control over the primary… they can
threaten departure!
 Injury to the public

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 Allied International
Conduct by union members designed to serve as a political protest may violate
8(b)(4) despite First amendment

FF: Union that refused to unload cargo arriving from USSR as a protest against
Russian invasion of Afghanistan were found to be engage in activity “in
commerce” that imposed a heavy burden on neutral employers. Since this burden
was at least one object of the activity, the activity was illegal secondary pressure
under the NLRA

- This is purely political, NOT within the scope of Section 8

- What if one or more ER occupies the same site? It may affect ALL
picketing at a site owned by a secondary employer? It is allowed
ONLY if all of the following conditions are met and there is no
independent overriding evidence of motive: The picketing is limited to
times at which the primary employer is actually on the site, the primary
employer is engaged in his ordinary business on site, the picketing is
reasonably close to the actual location, any picketing signs clearly states
that the dispute is ONLY with the primary employer

Application of § 8(b)(4) to the ILA’s activity in this case will not infringe upon the
First Amendment rights of the ILA and its members. We have consistently rejected
the claim that secondary picketing by labor unions in violation of § 8(b)(4) is
protected activity under the First Amendment. It would seem even clearer that
conduct designed not to communicate but to coerce merits still less consideration
under the First Amendment

Royal Typewriter
They made good on warranty/repair contracts… so they reimbursed the costs to
independent contracts by paying them directly… ER said the Union violate 8(b)(4)

If they just gave their customers money to go to another place, and get their
typewriter repaired, that secondary party would NOT be an ally

Heart of Functionality: Is the target trying to set itself up so the strike does not
damage it (ensuring the supply of goods to the purchasers) – either by contracting the
work out itself or by paying for it when it’s done somewhere else

Holding: Evidence established that independent employers engaged in repairing

typewriters of customers of primary employer were so allied with primary employer
that union's picketing of independent employers' premises was not prohibited by

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statute making it unfair labor practice to “induce or encourage” employees of
neutral employer to engage in strike
 Two types of Allies:
o 1. ERs who get the work farmed out to them during a strike… 2. those who have
common ownership, control and are an integrated part of operations…
o Q: whether the asserted neutral is in fact a ‘wholly unconcerned’ person and,
thus, neutral and protected by Section 8(b)(4)(B).”
 Royal Typewriter – struck-work analysis (aka are you an ally or not) –

Ally Doctrine (Royal Typewriter)

- Q: what happens if the picketing attacks someone who is NOT so neutral?
(Intermingled with the primary employer)
- Neutral employers (those who are not the target of the picketing) may be
considered allied with the target employer. In such an event, picketing of such allied
employers would not constitute secondary activity in violation of the Act.
Determining whether an employer is an ally of the target depends upon the nature
of the work performed by the neutral employer and its relationship with the target.

“Same Person Doctrine”

 to cease doing business with “other” person (or other ER)
 So if we have a secondary boycott, is the target of that boycott an ER that is not the
same firm as the primary but instead “another” person/firm…
o The test: Common ownership, but more important: common management
common control of labor relations… or integrated operations

For the target entity to be deemed the “same person” as the primary, there must be
common ownership PLUS –
• The target (say, a parent corporation) must exercise actual, not merely
potential, control over labor relations at the primary; or
• The two entities are functionally integrated (primary and target comprise
an “integrated enterprise” or engage in “straight-line operations”); or
• The target must perform some struck work or at least have the capacity
and be likely to do so.

AFTRA
The court held that unincorporated operating divisions of a single company may be
“separate persons” within § 8(b)(4)(B), each entitled to neutral status vis-à-vis the
other. The court acknowledged the connections between the paper and the station
cited by AFTRA, but regarded these as “superficial connections” between essentially
autonomous businesses.

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Common Site

Moore Dry Dock

R: Balance these competing interest. F: the Union commenced a strike against a
shipowner while the ship was in a drydock facility owned by the secondary employer.
The union began picketing the drydock, and the NLRB had to decide the extent to
which such picketing would be permitted. In doing so, it formulated the following
criteria:

Picketing at situs owned by secondary employer is allowed ONLY if all of the

following conditions are met, and there is no independent overriding evidence of a
secondary motive:

1) The picketing is limited to times at which the primary employer is actually located on
the secondary site;
2) The primary employer is engaged in his ordinary business at the secondary site;
3) The picketing is reasonably close to the actual location of the primary (e.g. if the primary
is only using one corner of the site the picketing must be limited to that)
4) Any picketing signs clearly state the the dispute is only with the primary employer.

Common Site Topic - Primary picketing – is lawful and robustly protected…

o Secondary picketing – is ordinarily unlawful… but we have a problem – ERs
who work on common sites – same geographical space
o Ex: ship in a dock
- Individual coercion as “boycott activity” – a union violates section 8(b)(4) when it
causes “EEs” of the secondary employer to put economic pressure on the secondary
employer. Problems frequently arise where only one EE has been approached

General Electric
Governs the situation where the common site belongs to the primary

- A lot like the university with multiple contractors doing business on that property
- Rule: Tells us how to distinguish neutrals from its primary and its allies
o Delivery to or delivery from are NOT neutrals
o Standard maintenance/services are not neutrals
o ^Critical Q: Is the work unrelated to the normal business operations of the ER
o Ex: If you have construction workers on campus, those people are neutrals.
Everyone else, guards, workers, delivers, students = no neutrals
o Difference in the “reserve gate”/ designated gates
o The primary employer (like GE or a university) can set up a reserve gate that
is only to be used by the neutral contractors

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 - H: Perfectly fine to have a reserve gate, but make sure it’s only contractors using it

Carrier Corp.
Train is carrying goods – picketing the place the train is delivering to.

Carrier Corp. held that primary employees may lawfully appeal to neutral
employees to cease work, even if this is done away from the primary’s premises, so
long as the “duties of those [secondary] employees [are] connected with the normal
operations of the [primary] employer.” This rule is sometimes called the related
work doctrine. “Related work” is work or servicing that is necessary to maintain
the primary’s regular, day-to-day operations.

Markwell & Hartz

In Markwell & Hartz the primary employer was a general contractor employing
approximately 80% of the workers on the construction site. The secondary
employers were subcontractors engaged in pile driving and electrical work. When,
in the course of its dispute with the general contractor, the union picketed a
separate gate reserved for the neutral subcontractors, the employers charged the
union with a § 8(b)(4) violation. Reserve gate from GE does not apply to
construction companies.

Picketing & The First Amendment

Union seeks to put pressure on secondary firms – the actions aimed at the secondary
are not intended to enlist the EEs of the secondary… nor people delivering products
to the super market

Audience is consumers! – why does this make a different?

- 8(b)(4)(i)…. TO… 8(b)(4)(ii) – the latter makes it a ULP to “threaten,

coerce, or restrain, any person engage in commerce…”
o Little (ii) – was added for the purpose of reaching customers
- Important point: the threat/coerce/restrain language, is NOT about
whether the unions appeal threatens/coerces/ or restrains the consumer
o The question becomes… when a union appeals to YOUR consumers,
asking them not to buy stuff, am I threatening/coercing you?
o Does the picketing designed to keep customers away, threaten,
coerce, or restrain the secondary ER?

(ii) – “publicity proviso”

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  1st amendment, you have a problem if you are restricting the union from asking
something from someone that is perfectly lawful to do!

Tree Fruits
There is no protection if the “publicity” induces a worker stoppage or interfere with
delivers to secondary ERs…

“Means other than picketing” – Despite the apparent ban in section 8(b)(4)(ii)(B) on
picketing as a means of publicizing a dispute, the SC in Tree Fruits, held that
Congress had not intended to ban ALL picketing at secondary sites. Ex: in this
case… the Court held that the peaceful picketing of retailers selling apples
produced by the primary ER with whom the union had a dispute was lawful, since
it was designed to induce consumers to cease purchasing the apples (the
product) rather than cease dealing altogether with the retailer…

R: The Court ruled in employing the term “means other than picketing” in section
8(b)(4)(ii)B), Congress had not used the “requisite clarity” necessary to effect a
broad ban against peaceful picketing (which would limit 1st amendment guarantees
of free speech)…so it must be directed against the product…

 Thus, a union may lawfully picket a secondary ER for the purpose of imposing a partial
as opposed to a total, consumer boycott

Holding/Discussion:
 The Board thinks that “other than picketing” – revealed a congressional
purpose to outlaw all picketing directed at customers at a secondary site –
 Holding: We have examined the legislative history of the amendments to §
8(b)(4), and conclude that it does not reflect with the requisite clarity a
congressional plan to proscribe all peaceful consumer picketing at secondary
sites, and, particularly, any concern with peaceful picketing when it is limited,
as here, to persuading Safeway customers not to buy Washington State apples
o Product picketing does NOT threaten/coerce the secondary…
customers will STILL shop there! The principal injury will be to the
primary… because the secondary can just STOP stocking those apples:
not threatening, coercive or restrain within the meaning of (ii)
 Publicity proviso? – shop boycott v. product boycott
 “Was its use to persuade the customers of the secondary employer to cease
trading with him in order to force him to cease dealing with, or to put pressure
upon, the primary employer”
o When consumer picketing is employed only to persuade customers not to
buy the struck product, the union’s appeal is closely confined to the
primary dispute.

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Union dispute is with the primary, they picket the secondary… and the signs they
use urge the customers at Safeway NOT to buy Washington Apples on account of
the union’s dispute (appeared after the store opened and left before the store
closed)… but the signs did NOT do any of the following:

 Urge the customers to boycott Safeway (just the apples)

 Urge Safeway employees to go on strike/stop handling Apples (no EEs or deliveries)

The publicity proviso says “other than picketing” – so on it’s face it wouldn’t help…
but you don’t even get to the proviso when you get to picketing because the Court
read it out ALL TOGETHER! – NOT a part of it… if you we are talking about a
true shop boycott then it is under the proviso, and there can be protection… a pure-
products boycott is outside the scope

 Congress sounded like they were talking about shop boycotts

Memorandum on Merged Product Doctrine, what is Picketing?

Tree Fruits does not protect product picketing where the primary’s product has so
merged into the target’s product or service that it loses its separate identity. The
rationale is that if the product has lost its identity in this way, the consumer is
unable to segregate his/her patronage of the struck good from his/her patronage of
the target.

Safeco
Subsequently, the SC resolved the issue more clearly… There, a union engage in
negotiations with a title insurance under-writer was found to have violated section
8(b)(4)(ii)(B) by picketing five neutral insurance companies whose business
came almost entirely (90%) from the under-writer

Imagine Tree Fruits’ secondary were an apple stand… it’s a secondary employer
test– but there’s no different between a shop boycott and a product boycott
is the product is all you sell!
 Tree Fruits is fine in the context of a multi-product secondary… NOT so if you’re talking
about the single product secondary
 Under Tree Fruits – THIS IS THE EVIL Congress WAS TRYING TO REACH
o It said “cancel your policy with the primary” but it may well have said “cancel
your business with the secondary” because they’re the same thing

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Labor Picketing & the First Amendment

DeBartolo I
Facts: Dispute with construction company… wanted construction company to pay
union wages

There is a mall… and one of the tenants is “Wilsons” – a sporting goods shop… they
hire the construction company to construct their department store – the union is
leafleting the mall (not picketing) – asking consumers NOT TO SHOP IN ANY
OF THE STORES until the malls owners agree that ALL construction on its mall
will be done by contractors who pay the union wages..

 The OTHER people do nothing… this is a literal shop boycott, asking people not to shop
at these stores (who have no control) – clearly covered by (ii
 The publicity proviso covers publicity “other than picketing” – so far so good…
 Problem: the secondary is not distributing products produced by the primary…
o Debartolo I: says okay, we can cover Wilson… they are using the construction
company (the products of a construction company… by using their construct….)
but the other mall tenants are NOT in any way shape or form distributors
o The publicity proviso is addressed to 1 relationship: the traditional maker and
supplier

HOLDING: Reads consumer hand-billing out of 8(b)(4)(ii) OUT TOTALLY –

Congress was worried about consumer picketing, they were not worried
about other forms of publicity. Does not apply to handbills encouraging
neutral workers to strike.

Regulating hand-billing would be a violation of the 1st Amendment

Consumers – labor can ask consumers not to shop.. but not allowed to ask
workers not to work – WHATS THE DIFFERENCE? – double standard…
consumers are spending their own dollars.. where as the jobs don’t actually
belong to the workers, they belong to the ER?

An effect of DeBartolo II was to greatly diminish the significance of the “publicity

proviso.” The publicity proviso was initially understood as an exception to the main
text of § 8(b)(4)(B), sheltering certain non-picketing publicity that would otherwise
run afoul of the section. DeBartolo II reads the publicity proviso as a sort of
“clarification” of what was intended in the main text of § 8(b)(4)(B) rather than as
an exception. DeBartolo II holds that non-picketing publicity such as leafleting is
not “coercive” and therefore such non-picketing publicity does not violate §

63
8(b)(4)(ii)(B) in the first place without ever reaching the question whether the
publicity proviso creates an exception. In the upshot, DeBartolo II rendered the
“publicity proviso” largely obsolete.3
Secondary Appeals for Consumer Boycotts

by by
peaceful, non- peaceful non-
obstructive picketing obstructive leafleting

union appeals for legal (Tree Fruits), legal

product-only unless threat of ruin or (no 8(b)(4)(ii)
boycott substantial loss (Safeco) conduct)

union appeals for

total boycott illegal legal
of the secondary (DeBartolo II)

Notes: This chart covers cases that define the words threaten, coerce, or restrain
within § 8(b)(4)(ii) in the context of boycott-appeals directed to consumers. Section
8(b)(4)(ii) distinguishes between coercive and non-coercive conduct, not between
picketing and leafleting. The line of cases referred to in the chart considers whether
and when peaceful, non-obstructive picketing and/or leafleting is “coercive.” Unions
sometimes deploy novel tactics that are neither conventional picketing nor
conventional leafleting. If the unconventional tactic is deemed to be “coercive” on
all the facts and circumstances, its use to achieve a forbidden purpose (e.g., total
consumer boycott) is a ULP.

The chart assumes –

3
Theoretically the publicity proviso might still come into play in a case involving unconventional publicity about a
primary labor dispute that is neither picketing nor leafleting (e.g., street theatre).

64
1. The union is a “labor organization” within the NLRA.

2. The target is a “neutral.” That is, the target is not an ally (Royal Typewriter)); is
not the same person as the primary (AFTRA); is not harboring a roving primary
situs (Moore Dry Dock); is not operating on the primary’s premises behind an invalid
reserve gate (GE); and is not performing related work (Carrier Corp.). If any of these
five conditions holds, the union may apply to the target any pressure it may
lawfully apply to the primary.

3. The appeal is strictly to consumers. Neither the union nor its agents “engage[ ]
in, or induce[ ] or encourage[ ]” any employee to strike, to refuse to make deliveries
or pick-ups, or refuse to handle “hot goods.”

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Flowchart of § 8(b)(4)(B) Analysis

ELEMENT 1 – labor
organization – the
Respondent must be labor
organization within § 2(5) of
the Act
If not, no
If yes, proceed to
ULP,
ELEMENT 2 –
case over
forbidden means,
tactic, or pressure

type (i) –
union appeals to type (ii) – all type (i)
workers (need not be and/or pressure and any other
EEs within § 2(3) of coercive tactic (e.g.,
the Act) to cease work some consumer
or refuse to handle boycotts)
hot goods

Non-coercive Coercive

e.g., product- E.g., disrupt business by creating

picketing for commotion; picketing for total
No consumer consumer boycott (Tree Fruits);
ULP, boycott (Tree product-picketing for consumer
case Fruits); boycott where risk of ruin or
over leafleting for substantial financial loss (Safeco gloss
total consumer on Tree Fruits); disruptive, in-your-
boycott face tactics treated as “like” picketing
(DeBartolo II)
If either type (i) pressure and/or (K Mart)
type (ii) pressure, proceed to
ELEMENT #3 – forbidden
object or purpose

the forbidden objects/purposes are specified in subsections (A)

through (D) of § 8(b)(4); here we focus on the § 8(b)(4)(B) forbidden
purpose – pressuring a neutral person within § 2(1) (need not be
an employer within § 2(2)) to cease doing business with or
otherwise pressure another “person,” usually a primary employer;
the key analytical issues are whether the alleged neutral person is
an ally (Royal Typewriter); the same person as the other person
(AFTRA); harboring a roving, primary situs (Moore Dry Dock);
operating on a common situs without a compliant reserve gate
(GE); performing related work (Carrier Corporation); or is
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merely suffering the normal secondary fallout of primary
strike activity