unions and their members

8/3/2019 Unions and Their Members

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Evolution of Labor LawJudicial Intervention ................................................................. 1The Labor Injunction in Private Disputes ....................................................................... 1The Antitrust Laws ......................................................................................................... 2

Evolution of Labor LawLegislative and Constitutional Protections............................... 4The Enactment of the Norris-LaGuardia Act.................................................................. 4The Sherman Act Revisited ............................................................................................ 5

Labor and the Antitrust Laws ............................................................................................. 5Federalism and Labor Relations ....................................................................................... 11

Preemption of State Labor Law: An Overview ............................................................ 11Specific Applications: Representation, Bargaining and Concerted Activities ............. 16Enforcement of Collective Bargaining Agreements ..................................................... 20

Exclusive Representation and Majority Rule ................................................................... 22The Individual and the Union ........................................................................................... 24

The Right to Fair Representation .................................................................................. 24The Source and Enforcement of the Unions Duty................................................... 24The Unions Duty in Contract Making ..................................................................... 25The Individual and His Grievance ............................................................................ 26

Union Security and the Encouragement of Union Activity .......................................... 29

Union Security and the Use of Union Dues .............................................................. 29State Right to Work Laws ......................................................................................... 32The Union Hiring Hall .............................................................................................. 32Benefits for Union Officials...................................................................................... 32

Discipline of Union Members and the National Labor Relations Act .......................... 33State Issues .................................................................................................................... 36

Relevant Statutes ............................................................................................................... 38Clayton Act ................................................................................................................... 38National Railway Labor Act ......................................................................................... 38Norris- Laguardia Act (1932) ....................................................................................... 38National Labor Relations Act (1935) (Wagner Act) / Labor Manaement Relations Act(Taft-Hartley) ................................................................................................................ 39

Evolution of Labor Law Judicial Intervention

The Labor Injunction in Private Disputes1. Vegalahn v. Gutneremployees picketed in front of employer, no violence or

physical action, simply persuasion; injunction given and appealeda. Holding

i. The injunction is reasonable and the strike is dissalowedii. Basically shows the early denial of strike rights

2. Plant v. Woodsa. Facts

i. This case arises out of a conflict between two labor unions withdifferent headquarters


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ii. One of the unions was based in Baltimore, and declared that allworkers with the other union, based in Lafayette to be Non-Union

iii. Woods is the Baltimore Labor Union and Plant is the LafayetteUnion

iv.

The Baltimore Union sent representatives to places whichemployed the Plaintiffs men and asked the employers to induce themen to join their union

1. They did this in a courteous manner and were not violent2. The only factor of intimidation was that there was fear that

there would be trouble for the business which was taken tomean strikes

b. Issuei. Whether the inquiry as to a change in workers union affiliation

which gave the fear of a strike was intimidation and thus illegalc. Holding

i.

This was a malicious act of molestation and thus illegalii. There is a right to competition between parties but this does notmean that there can be wanton interference, disturbance orannoyance

iii. In this case the threat was basically imposing a fine for notemploying men of a certain labor union and was illegal

d. Dissenti. This action was taken to strengthen the union and was this a legal

action as is striking to increase wages3. Bowen v. Matheson

a. It is allowable for an association work to destroy individual businesses solong as no illegal activity is taken to that end

4. Mogul Steamship Company v. McGregor, Gow & Co.a. Activities which intentionally harm other companies are allowable as

companies may deal as they pleaseb. This case overturns British Common Law and allows for the combination

of capital as long as it is a legitimate use of trade5. United Shoe Machinery Corp. v. Fitzgerald

a. The court held that machinists who had individual contracts and thenstruck for a CBA did so illegally

i. The struck and lobbied for boycotts of items created by a newmachine

b. The objective test may be stated as:i. Whether or not there was an intention to deprive the plaintiff and

its customers of their right to freely conduct their businessii. Whether the public at large is deprived of the advantages to be

derived from the use of the invention

The Antitrust Laws1. Sherman Act


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a. Made unlawful any restraint of trade and made a violation of this a federaloffense through conspiracies

b. The point of this act was to stop any alienation of commerce, and to stopbig business from conspiring to take over markets.

c. There became evident the question of whether the Sherman act wasapplicable to workers groupsd. Loewe v. Lawlor

i. Facts1. The hat makers were unionizing and Loewe was one of 12

shops which did not unionize2. Loewe could not meet union requirements and stay in

business but his workers were content with the situation3. He and Charles Merritt came up with the American Anti-

Boycott Association to fight the unions4. The union was attempting to dissuade people from

purchasing his hats thought he use of persuasion and threats

5.

He struck back in court by suing the members of the unionand attaching their property as well as taking out an ad inthe paper advocating open shops

6. The case was struck down in the district level due tojurisdictional issues

ii. Issue1. Whether this boycott falls under the Sherman Act

iii. Holding1. Yes

a. Restraining trade is a narrowing of the marketb. There is an ability to hold workers groups under the

Sherman Actc. The Worker group is interstate and thus the

interstate contacts of the non-union shop do notreally matter

2. The Clayton Act and the Development of the Unionsa. The Clayton act was passed and included union provisions which were

seen by the unions as sweeping away Sherman precedentb. Stated that Unions were to be taken outside of the Sherman Actc. Strikes are not subject to injunction when they were used in the course of a

labor disputed. Wilson continued to strengthen the position of the unions with the NWLB

which acted positively toward unionse. This ended with Fordism and the influx of immigrant unskilled workersf. The Clayton act ended up impotent to the courts decisionsg. Duplex Printing Press Co. v. Deering

i. Facts1. Duplex runs an open shop but members of the International

Association of Machinists were not in favor of thatarrangement and wished for this to be a closed shop


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2. They manufacture newspaper presses which are within therealm of interstate commerce

3. About 14 members of the staff left the employ due to thelack of unionization

4. The issue arose when the union incited discord amongst thecustomers of the plaintiff as well as those in otherindustries but were engaged in business with the plaintiff

a. This was done through threatsii. Issues

1. Whether the Clayton Act forbids injunctions against unionactivities

iii. Holdings1. No

a. Section 6 of the act does allow for unions to exist,but only as long as they have lawful means forcarrying out their legitimate aims

b.

Section 20 of the act again stresses lawful actionsc. The court narrowly interpreted what a labor disputewas and found that those involved were not theemployees of the printing press company then therewas no protection of section 20

d. The blockade of interstate commerce and secondarystrikes is not within the scope of Clayton

e. Also there is a distinction between employees andemployees of a certain employer

i. It is ok to use upon activity against youremployer but not another employer

iv. Dissent1. The interference is justified but the aims of the action2. They were protecting their common self interest3. The Clayton act does not only apply to the legal

relationship between employer and employee

Evolution of Labor Law Legislative and Constitutional

Protections

The Enactment of the Norris-LaGuardia Act

1. This law was passed due to the frustration with the reading of the Clayton act bythe Supreme Court2. Substantive Considerations

a. The courts were unable to adjudicate the underlying relationship issues athand.

b. The grant or denial of an injunction was not based on the underlying socialand economic dispute


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c. The unions needed CBAs but needed to exert pressure in order to gainmembers to make a CBA reachable

d. Other items weakened the unions such as Yellow Dog Contractsi. Contracts not to join an union

ii. These were enforced by the courtse.

The objectives test, where the court determined the objectives of theworkers, was seen as a double standard

f. The court dealt with violence through injunctions which were seen asinappropriate as they felt criminal law was reasonable

i. The union was also held responsible for violence it did not approveof

3. Procedural objectionsa. Ex Parte agreements were the normal procedural method against picketing

which only heard the employers sideb. The injunctions led to violence as strike breakers were called in

4. Considerations of judicial administrationa.

The judicial involvement cause only dissatisfaction through refusal to usethe criminal system and by expanding a device to a code of prohibitedconduct

The Sherman Act Revisited1. The Sherman Act began to lose power with decisions that certain strikes did not

effect interstate commerce2. Congressional support began to increase in regards to unionization and there were

many laws passed which loosened regulations

Labor and the Antitrust Laws1. Intro

a. Throughout the legislative history in regards to unions the use of Anti-Trust laws to fight unions has been diminished by further legislation andthe courts

b. Apex Hosiery v. Leaderthe court indicated that it was steering awayfrom the antitrust legislation to union activity

i. The Attorney General attempted to further reign in Union activityafter this which lead to US v. Hutcheson

2. United States v. Hutchesona. Facts

i. Anheuser-Busch and its lessee the Gaylord Container Corporationcontracted for new facilities

ii. A-Bs employees were represented by the United Brotherhood ofCarpenters and Joiners and the International Association ofMachinists

iii. A-B gave the job of erecting and dismantling machinery to themachinists but the officials of the carpenters claimed that job astheirs


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iv. The carpenters rejected arbitration and A-B refused their requestand they struck

v. The officials were indicted under Sherman but the trial courtsustained their demurrers

vi. The prosecution appealedb.

Issuei. Is the use of conventional, peaceful activities by a union in

controversy with a rival union over certain jobs a violation of theSherman Act

c. Holdingi. No

ii. The Sherman Act cannot be considered apart from the two othercongressional pronouncements

1. Section 20 of the Clayton Act withdrew the portions ofSherman which provided for injunctions against laborunions

2.

Norris-LaGuardia stated that the allowable scope of unionactivity was not limited solely to the direct employeeemployer relationship

iii. The two acts protect this behavior therefore there can be nocriminal liability passed to the union

d. Notesi. Allen Bradley Co v. Local Union No 3where a union uses its

influence to force companies to purchase from union shops theSherman Act was violated

3. United Mine Workers of America v. Penningtona. Facts

i. The trustees of the United Mine Workers of America Welfare andRetirement Fund sued respondents, partners in a coal miningcompany, for royalty payments under the National BituminousCoal Wage Agreement of 1950

ii. Respondents filed a cross-claim for damages, alleging that thetrustees, the UMW and certain large coal operators had conspiredto restrain and monopolize commerce in violation of 1 and 2 ofthe Sherman Act.

iii. It was alleged that, to eradicate overproduction in the coal industry,the UMW and large operators agreed to eliminate the smallercompanies by imposing the terms of the 1950 Agreement on allcompanies regardless of ability to pay, by increasing royalties duethe welfare fund, by excluding the marketing, production and saleof nonunion coal, by refusing to lease coal lands to nonunionoperators and refusing to buy or sell coal mined by such operators,by obtaining from the Secretary of Labor the establishment of aminimum wage under the Walsh-Healey Act higher than that inother industries, by urging TVA to curtail spot market purchaseswhich were exempt from the Walsh-Healey order, and by waging a


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price-cutting campaign to drive small companies out of the spotmarket.

iv. Petitioner's motions to dismiss were denied, and the jury returned averdict against the trustees and the UMW.

v. The trial court set aside the verdict against the trustees, butoverruled the union's motion for judgment notwithstanding theverdict or for a new trial.

vi. The Court of Appeals affirmed, ruling that the union was notexempt from liability under the Sherman Act under the facts of thecase.

b. Issuei. Whether a Union-Employer contract the inhibits commerce is

exempt from the Sherman Antitrust Act?c. Holding

i. An agreement between the union and large operators to secureuniform labor standards throughout the industry would not be

exempt from the antitrust laws.1. An agreement resulting from union-employer bargaining isnot automatically exempt from Sherman Act scrutinymerely because the negotiations covered wage standards, orany other compulsory subject of bargaining.

2. A union may make wage agreements with a multiemployerbargaining unit and may, in pursuance of its own self-interests, seek to obtain the same terms from otheremployers, but it forfeits its antitrust exemption when itagrees with a group of employers to impose a certain wagescale on other bargaining units, and thus joins a conspiracyto curtail competition.

3. Nothing in the national labor policy indicates that a unionand employers in one bargaining unit are free to bargainabout wages or working conditions of other bargainingunits or to settle these matters for the whole industry, nordoes it allow an employer to condition the signing of anagreement on the union's imposition of a similar contracton his competitors.

4. Antitrust policy clearly restricts employer-unionagreements seeking to set labor standards outside thebargaining unit, in view of the anticompetitive potentialand the surrender by the union of its freedom of action withrespect to bargaining policy.

ii. Concerted efforts to influence public officials do not violate theantitrust laws even though intended to eliminate competition.

1. Instructions to the jury that anticompetitive purpose couldsupport an illegal conspiracy based solely on the Walsh-Healey and TVA episodes did not constitute merelyharmless error.


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2. Respondents were not entitled to damages under theSherman Act for any injury suffered from the actions of theSecretary of Labor, and the jury should have been soinstructed.

4. Local Union NO 189, Amalgamated Meat Cutters v. Jewel Tea Coa.

Factsi. Respondent brought this action under 1 and 2 of the Sherman

Act alleging that petitioners and Associated had conspired torestrain competition in retail meat markets in the Chicago area bylimiting the marketing hours for the sale of fresh meat through aclause in the collective bargaining agreement between Associatedand petitioners and between respondent and petitioners.

ii. The District Court, after trial, held that there was no evidence inthe record to support a finding of a conspiracy to force therestrictive provision on respondent, that the marketing-hourslimitation was imposed by the unions to serve their own interests

respecting conditions of employment, and that such action wasclearly within the labor exemption of the Sherman Act.iii. The Court of Appeals reversed the dismissal of the complaint as to

the unions and Associated, and without upsetting the DistrictCourt's finding that, apart from the contractual provision itself,there was no evidence of conspiracy, concluded that a conspiracyin restraint of trade was shown.

iv. It held that the employer-union contract concerning working hoursis unlawful, as the establishment of the hours of work is a functionof the employer.

b. Issuei. Whether a CBA can concern the working hours of the area of

business they work into?c. Holding

i. A provision establishing the particular hours of work would bewithin the ambit of wages, hours and working conditions requiringmandatory bargaining, and the unions' success in obtaining thatprovision through negotiation in pursuit of their own policies fallswithin the protection of the national labor policy and is exemptfrom the Sherman Act

ii. Likewise a marketing-hours restriction would be exempt if nightoperation of meat markets would require night employment ofbutchers, impair the butchers' jurisdiction or substantially affecttheir workload

iii. But if self-service markets could conduct night operations withoutaffecting the vital interests of butchers, there might be restraint onthe product market, and the limitation imposed by the unions mightbe nothing more than an attempt to protect one group of employersfrom competition from another group, which is conduct not exemptfrom the Sherman Act.


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iv. The resolution by the District Court of the question of whethernight operations without butchers, and without infringement of thebutchers' interests, are feasible, in favor of the unions' position,was supported by evidence in the record and is not clearlyerroneous

5.

The Nonstatutory Antitrust Exemption and Professional Sportsa. Sports Leagues are allowed to inhibit competition using the rationale ofJewel Tea

b. There is a major issue of whether the no statutory exception expires whenthe CBA expires, or whether it holds; on this point the courts have notbeen consistent up untilBrown v. Pro Football

c. Brown v. Pro FootballThe court read the nonstatutory exceptionbroadly throughout the entire Collective Bargaining Process

i. The court wished to prevent the use of antitrust legislation to solvelabor disputes

ii. As long as the dispute arises out of collective bargaining then thenonstatutory exception applies6. Connell Constr. Co. v. Plumbers and Steamfitters Local Union 100

a. Factsi. Respondent union, representing the plumbing and mechanical

trades in Dallas, was a party to a multiemployer collective-bargaining agreement with a mechanical contractors association.

ii. The agreement contained a "most favored nation" clause, by whichthe union agreed that if it granted a more favorable contract to anyother employer it would extend the same terms to all associationmembers.

iii. Respondent picketed petitioner, a general building contractorwhich subcontracted all plumbing and mechanical work and hadno employees respondent wished to represent, to secure a contractwhereby petitioner agreed to subcontract such work only to firmsthat had a current contract with respondent.

iv. Petitioner signed under protest and, claiming that the agreementviolated the Sherman Act and state antitrust laws, brought suitagainst respondent seeking declaratory and injunctive relief.

v. By the time this case went to trial, respondent had secured identicalagreements from other general contractors and was selectivelypicketing those who resisted.

vi. The District Court held (1) that the subcontracting agreement wasexempt from federal antitrust laws because it was authorized by thefirst proviso in 8 (e) of the National Labor Relations Act(NLRA), which exempts jobsite contracting agreements in theconstruction industry from the statutory ban on secondaryagreements requiring employers to cease doing business with otherpersons, and (1) that federal labor legislation pre-empted theState's antitrust laws.

vii. The Court of Appeals affirmed.


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b. Issuei. Whether the agreements made were within the realm of Collective

BArgainins and therefore entitled to the nonstautory exemptionc. Holding

i. Respondent union's agreement with petitioner is not entitled to thenonstatutory exemption from the federal antitrust laws recognizedinJewel Tea because it imposed direct restraints on competitionamong subcontractors that would not have resulted from theelimination of competition based on differences in wages andworking conditions.

1. The agreement indiscriminately excluded nonunionsubcontractors from a portion of the market, even if theircompetitive advantages were derived from efficientoperating methods rather than substandard wages andworking conditions

2. The "most-favored nation" clause in the multiemployerbargaining agreement, by insuring that no unionsubcontractor would have a competitive advantage on anymatters covered by the agreement, gave respondent'sagreements with petitioner and other general contractorsthe effect of creating a sheltered market for unionsubcontractors in that portion of the subcontracting marketcontrolled by signatory general contractors.

3. Since the agreement did not simply prohibit subcontractingto any nonunion firm but to any firm that did not have acontract with respondent, it gave the union completecontrol over subcontract work offered by generalcontractors that had signed the agreement and empoweredthe union to exclude certain subcontractors from thatportion of the market by refusing to deal with them.

ii. The first proviso to 8 (e) of the NLRA does not shelter thechallenged agreement from the federal antitrust laws, since thatproviso was not intended to authorize subcontracting agreementsthat are neither within the context of a collective-bargainingrelationship nor limited to any particular jobsite. Here respondent,which has never sought to represent petitioner's employees orbargain with petitioner on their behalf, makes no claim to beprotecting those employees from working with nonunion men; theagreement was not limited to any particular jobsite; and respondentconcededly sought the agreement solely as a means of pressuringDallas mechanical subcontractors to recognize it as theiremployees' representative.

iii. There is no indication that Congress in the Taft-Hartleyamendments or later meant to make NLRA remedies for"hotcargo" agreements exclusive, thus precluding liability for suchagreements under the antitrust acts.


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iv. The agreement is not subject to the state antitrust laws, the use ofwhich to regulate union activities in aid of union organizationwould risk substantial conflict with policies central to federal laborlaw.

7. The Distinction Between Non-Exemption and Substantive Antirust Liabilitya.

The union conduct should be measured by the rule of reason in recognitionof the particular labor relations context even if similar conduct may be perse unlawful

b. There is a determination of illegality, and then the conduct is weighedagainst the rule of reason

8. American Federation of Musicians v. Carrolla. Facts

i. The Federation had a number of regulations regarding one timeengagements which substituted as a CBA for one time functions

ii. A group of bad leaders challenged this practice and filed forinjunction and treble damages

b.

Holdingi. The Supreme Court found that this was only affected a Laborgroup within NLA and therefore were exempt from Sherman

ii. The band leader were in performed work and functions whichactually or potentially affected the hours, wages, job security andworking conditions of AFM members

iii. The price list was seen as acceptable as it went solely to the wagesof the workers.

Federalism and Labor Relations

Preemption of State Labor Law: An Overview1. It was assumed until the mid 1930s that labor disputes were beyond the power of

congress in regards to the commerce clausea. Adair v. United Statesmembership in union not interstate commerceb. Carter v.Carter Coalcongress cannot regulate how coal was produced

2. Since 1937 the courts have systematically extended the power of congress overlabor disputes

a. NLRB v. Jones and Laughlin Steel3. This increasing of power since 1937 has raised three questions

a. How far out along he range of infinitely small gradations from interstaterailroads and basic steel producers to corner drugstores and delicatessensshould actually federal regulation of labor extend

i. The NLRB of its own volition limited its jurisdiction to excludesmall businesses of only local importance

ii. Landrum-Griffin Act level of jurisdiction is that of 1958b. What tribunals have jurisdiction and what applies to the labor relations of

those businesses over which the NLRB can, but declines to, exercisejurisdiction?


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i. It was first assumed that the state law would take over but Guss v.Utah Labor Relations Boardended that leaving a no mans land

ii. Congress remedied this no mans land by placing in Section 14(c)that the state law was to be used, and it has since been assumedthat state tribunals are the correct venue

iii.

It is however permissible for the NLRB to negotiate an agreementwith a state agency to ceded jurisdiction to the state as long as thestate law is constant with the federal la w

1. Algoma Plywood and Veneer v. Wisconsen EmploymentRelation Board -- state law must run parallell

2. Produce Magic v. NLRB -- substantially identicalc. How far does actual federal regulation of the labor relations of a business

exclude the appliation of inconsistent, parallel or supplementary state lawi. There is no real answer as congress has been silent on this and

passed it along to the courts who have left it to rest on the intent ofCongress

ii.

The Supreme Court has set down two all encompassing theories1. The state courts cannot curtail conduct of employer orunions which congress seeks affirmatively to protect or atleast permit

2. The states cannot regulate conduct which is clearlyprotected or even conduct which is clearly prohibited dueto the fact that the NLRB is the designated agency

iii. These two theories have been curtailed using justifications of deeproots in local feeling and responsibility, that the issue is just aperipheral concern of the federal law, the state law is one ofgeneral applicability

4. San Diego Building Trades Counsel v. Garmona. Facts

i. Although the National Labor Relations Board had declined toexercise jurisdiction, a California state court was precluded by theNational Labor Relations Act from awarding damages torespondents under state law for economic injuries resulting fromthe peaceful picketing of their plant by labor unions which had notbeen selected by a majority of respondents' employees as theirbargaining agents

b. Issuei. Whether the State law is preempted when the NLRB denies

exercise of jurisdictionc. Holding

i. NOii. When an activity arguably subject to 7 or 8 of the National

Labor Relations Act, as was the picketing here involved, theStates, as well as the federal courts, must defer to the exclusivecompetence of the National Labor Relations Board


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iii. Failure of the National Labor Relations Board to assumejurisdiction does not leave the States free to regulate activities theywould otherwise be precluded from regulating

iv. Since the National Labor Relations Board has not adjudicated thestatus of the conduct here involved, and since such activity is

arguably within the compass of 7 or 8 of the Act, the State'sjurisdiction is displaced.v. A different conclusion is not required by the fact that all that is

involved here is an attempt by the State to award damages, sincestate regulation can be as effectively exerted through an award ofdamages as through some form of preventive relief.

5. Amalgamated Assn of Steet, Elec, Ry. And Motor Coach Employees v. Lockridgea. Facts

i. Lockridge paid his union dues 10 days lateii. The union refused the sum and had Greyhound discharge

Lockridge perusant to the labor agreement

iii.

Lockridge filed suit for breach of conduct due to the unionconstitution and bylaws which state that 15 day late dues aredelinquent and 2 month late dues are suspended

iv. The state court found for Lockridge and awarded damagesb. Issuec. Holding

i. This is essentially a NLRB claim even though it is brought under astate cause of action

ii. The court needed to investigate this as the NLRB did6. Farmer v. United Brotherhood of Carpenters and Joiners, Local 25

a. Factsi. A member and officer of respondent local carpenters' union

brought a tort action for damages in California state court againstrespondent Unions and Union officials, alleging in count two ofthe complaint that respondents had intentionally engaged inoutrageous conduct, threats, and intimidation, and had therebycaused him to suffer emotional distress resulting in bodily injury

ii. The jury returned a verdict of actual and punitive damages for theplaintiff, and the trial court entered a judgment on the verdict.

iii. The California Court of Appeal reversed, holding that state courtshad no jurisdiction over the complaint since the 'crux' of the actionconcerned employment relations and involved conduct arguablysubject to the National Labor Relations Board's jurisdiction.

b. Issuei. Whether a tort case in state court is preempted by the NLRB due to

labor concernsc. Holding

i. The National Labor Relations Act does not pre-empt the action forintentional infliction of emotional distress.


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1. No provision of the NLRA protects the 'outrageousconduct' complained of in count two, and regardless ofwhether the operation of the hiring hall was lawful orunlawful under federal statutes, there is no federalprotection for union officers' conduct that is so outrageous

that 'no reasonable man in a civilized society should beexpected to endure it.' Hence, permitting the state courts toexercise jurisdiction over such complaints does not result instate regulation of federally protected conduct.

2. The State, on the other hand, has a substantial interest inprotecting its citizens from the kind of abuse of which theplaintiff complained, and that interest is no less worthy ofrecognition because it concerns protection from emotionaldistress caused by outrageous conduct, rather thanprotection from physical injury or damage to reputation.

3. Viewed in light of the discrete concerns of the federalscheme of labor regulation and the state tort law, thepotential for interference with the federal scheme by thestate cause of action is insufficient to counterbalance thelegitimate and substantial interest of the State in protectingits citizens, since the state tort action can be resolvedwithout reference to any accommodation of the specialinterests of unions and members in the hiring hall context.

4. To permit concurrent state-court jurisdiction it is essentialthat the state tort be either unrelated to employmentdiscrimination or a function of the particularly abusivemanner in which the discrimination is accomplished orthreatened rather than a function of the actual or threateneddiscrimination itself.

ii. It is clear from the record that the trial of the claim for intentionalinfliction of emotional distress did not meet the above standards,since the evidence supporting the verdict for the plaintiff focusesless on the alleged 'outrageous conduct' complained of than onemployment discrimination; hence the consequent risk that theverdict represented damages for employment discrimination ratherthan for instances of intentional infliction of emotional distressprecludes reinstatement of the trial court's judgment.

d. Two Cautionary Notesi. The standard for libel is the NEW York Times Standard

ii. There needs to be an outrageous damages for there to be a tort ofthis kind

7. Sears, Roebuck and Co v. San Diego County Dist. Council of Carpenters a. Facts

i. Sears was subcontracting some of its carpentry work to a carpenterwho did not participate in hiring halls nor did he agree to theunions master agreement


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ii. They picketed and the picketing was enjoined in state court asvolatile of the trespassing law

b. Issuei. Is the state trespass law preempted by the NLRA

c. Holdingi.

NOii. The critical inquiry is whether the controversy presented to thestate court is identical to or different from that which could havebeen, but was not, presented to the National Labor RelationsBoard, for it is only in the former situation that a state court'sexercise of jurisdiction necessarily involves a risk of interferencewith the NLRB's unfair labor practice jurisdiction that the arguablyprohibited branch of the Garmon doctrine was designed to avoid.

iii. permitting state courts to evaluate the merits of an argument thatcertain trespasser activity is protected does not create anunacceptable risk of interference with conduct that the NLRB, and

a court reviewing the NLRB's decision, would find protected8. Lodge 76, Ineternational Association of Machinists v. Wisconsin EmploymentRelations Comission

a. Factsi. During negotiations for renewal of an expired collective bargaining

agreement with respondent employer, petitioner union and itsmembers engaged in a concerted refusal to work overtime.

ii. The employer filed a charge with the NLRB, claiming that suchrefusal was an unfair labor practice under the NLRA, but thecharge was dismissed on the ground that the refusal did not violatethe NLRA, and therefore was not conduct cognizable by theNLRB.

iii. The employer also filed an unfair labor practice complaint withrespondent Wisconsin Employment Relations Commission, whichheld that such refusal, while neither protected nor prohibited by theNLRA, was an unfair labor practice under state law, and entered acease and desist order against the union.

iv. The Wisconsin Circuit Court affirmed and entered a judgmentenforcing the order, and the Wisconsin Supreme Court affirmed.

b. Issuei. Whether the Wisconsin Employment Relation Comission is

preempted by the NLRBc. Holding

i. The union's concerted refusal to work overtime was peacefulconduct constituting activity that must be free of state regulation ifthe congressional intent in enacting the comprehensive federal lawof labor relations is not to be frustrated.

ii. Congress meant that self-help economic activities, whether ofemployer or employee, were not to be regulable by States anymore than by the NLRB, for neither States nor the NLRB is


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"afforded flexibility in picking and choosing which economicdevices of labor and management shall be branded as unlawful

9. Chamber of Commerce v. Browna. Facts

i. After the California legislature passed laws prohibiting the use ofstate funds to "assist, promote, or deter union organizing," a groupof California companies brought suit claiming the state laws werepreempted by the National Labor Relations Act, Section 7.

ii. The Act provides that companies' anti-labor speech can only beconsidered evidence of unfair labor practice if it threatens orcoerces workers.

iii. The California companies argued that the state laws infringe upontheir "safe harbor" for anti-labor speech embodied in the Act.

iv. The U.S. Court of Appeals for the Ninth Circuit, after entering twopanel decisions holding the California law preempted, issued asplit en banc opinion holding that it was not.

v.

The Second Circuit has reached the opposite conclusion on similarfacts. The Court's decision in this case will affect roughly a dozenother states currently considering adopting legislation substantiallysimilar to the California law.

b. Issuei. Does the National Labor Relations Act, which states that

companies' anti-labor speech can only be considered unfair laborpractice if it threatens or coerces workers, preempt state lawsprohibiting the use of state funds to "assist, promote, or deter unionorganizing," even if the public funds are transparently segregated?

c. Holdingi. Yes.

ii. California laws preempted by the National Labor Relations Actbecause the state laws regulated within "a zone protected andreserved for market freedom."

iii. the Act as showing a "congressional intent to encourage freedebate on issues dividing labor and management."

Specific Applications: Representation, Bargaining and Concerted Activities1. Intro

a. No state court or agency can work within the jurisdiction of the NLRBb. They stat may not purport to adjudicate and remedy unfair labor practices

in any businessc. However most state intervention is not as painfully obvious as the

situations above2. Selection of Bargaining Representative

a. Hill v. Floridaa state law posting requirements of a business agent wasstruck down due to the fact that it circumscribes the full freedom of choicethat congress placed upon employees


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b. Brown v. Hotel and Rest. Employeesa law requiring the casino licensingof labor organizers was acceptable. The line was drawn between a labororganization and the officers

3. Collective Bargaininga. Local 24, International Teamsters v. Oliver

i.

Facts1. A collective bargaining agreement between a group of locallabor unions and a group of interstate motor carriersprescribed a wage scale for truck drivers and, in order toprevent evasion thereof, provided that drivers who own anddrive their own vehicles should be paid, in addition to theprescribed wage, not less than a prescribed minimum rentalfor the use of their vehicles.

2. A suit was brought in a state court to enjoin certain carriersand a local union from carrying out the minimum rentalprovision on the ground that it violated a state antitrust law.

ii.

Issue1. Whether the CBA violated Antitrust regulationsiii. Holding

1. Since that provision was part of an agreement resultingfrom the exercise of collective bargaining rights under theNational Labor Relations Act, the state court was precludedfrom applying the state antitrust law to prohibit the partiesfrom carrying out its terms

a. In the light of its history and its purpose to protectthe negotiated wage scale against evasion throughpayment to owner-drivers of rentals insufficient tocover their operating costs, the minimum rentalprovision was within the scope of collectivebargaining required of the parties under 7 and 8of the National Labor Relations Act

b. The state antitrust law may not be applied toprevent the contracting parties from carrying outtheir agreement upon a subject matter as to whichfederal law directs them to bargain.

b. Met Life v. Commonwealth of Massachusettsi. Facts

1. A Massachusetts state law mandating minimum insurancecoverage was claimed to be preempted by ERISA and theNLRA

2. THe law required 60 days of mental healthii. Issue

1. Whether a state law mandating certain minimum statndardsfor health insurance is preempted by the NLRA

iii. Holding1. No


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2. NLRA preemption deals with state interference of NLRAstructures which congress did not want regulated

3. Such preemption rests on a sound understanding of theNLRA's purpose and operation that is incompatible withthe view that the NLRA preempts any state attempt to

impose minimum benefit terms on the parties to acollective bargaining agreement4. These laws effect all persons and regard the individual

worker not the labor organization5. There is nothing in the NLRA about this so congress could

not have meant to regulate this in the NLRAc. Fort Halifax Packing Co v. Coyne

i. Facts1. Main had a statute which mandated severance pay in the

event of a plant closing, but allowed this to be mitigated foremployees covered by a severance package

ii.

Holding1. The court sustained the statute due toMetLifea. Absent a collective bargaining agreement state

government may regulate laborb. There is nothing in the NLRA which foreclose all

state power with respect to uses which may be thesubject of collective Bargaining

d. Belknap, Inc. v. Halei. Facts

1. When negotiations for a new collective bargainingagreement between petitioner employer and the unionrepresenting certain of its employees reached an impasse,some of the employees went out on strike, and petitionerthen unilaterally granted a wage increase for employeeswho stayed on the job.

2. Petitioner also advertised for and hired "permanent"replacements for striking employees.

3. Under federal labor law, where employees engage in aneconomic strike, the employer may hire permanentreplacements whom he need not discharge even if thestrikers offer to return to work unconditionally.

4. However, if the strike is an unfair labor practice strike, theemployer must discharge replacements in order toaccommodate returning strikers.

5. Based on the unilateral wage increase, the union filedunfair labor practice charges with the NLRB againstpetitioner, which countered with charges of its own, andcomplaints were issued against both parties.

6. In the meantime, petitioner assured its replacementemployees that they would continue to be permanent


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replacements, but the unfair labor practice complaints werelater dismissed by the Board pursuant to a settlementagreement between the parties under which petitioneragreed to reinstate the strikers.

7. Respondents, replacement employees who were laid off tomake room for returning strikers, then sued petitioner in aKentucky state court to recover damages formisrepresentation and breach of contract.

8. The trial court granted summary judgment for petitioner onthe ground that respondents' causes of action werepreempted by the NLRA but the Kentucky Court ofAppeals reversed.

ii. Issue1. Whether the claims of misrepresentation and breach of

contract were preempted by the NLRAiii. Holding

1.

The doctrine ofMachinists v. Wisconsin EmploymentRelations Comm'n, proscribing state regulation and statelaw causes of action concerning conduct that Congressintended to be unregulated, does not foreclose this suit.

2. There is no indication that Congress intended conduct of anemployer and a union, such as that involved here, to becontrolled solely by the free play of economic forces, so asto preclude state court damages actions by dischargedreplacement employees on the theory that such actionswould upset the delicate balance of forces established byfederal law.

3. Entertaining suits such as the instant suit does not interferewith the asserted policy of federal law favoring settlementof labor disputes.

4. There is no substantial impact on the availability ofsettlement of economic or unfair labor practice strikes,because the employer may protect himself against suits likethis by promising permanent employment to replacementemployees, subject only to settlement with the union or to aBoard unfair labor practice order directing reinstatement ofstrikers. Such contracts are sufficiently "permanent" topermit the employer who prevails in a strike to keepreplacements he has hired if he prefers to do so.

5. Nor are respondents' causes of action preempted under SanDiego Building Trade Council v. Garmon, which held thatstate regulations and causes of action are presumptivelypreempted if they concern conduct that is actually orarguably either prohibited or protected by the NLRA.

6. While the questions whether the strike was an unfair laborpractice strike -- requiring reinstatement of strikers --


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because of petitioner's unilateral wage increase and whetherits offering permanent employment to respondents was alsoan unfair labor practice, were matters for the Board,nevertheless, under Garmon, a State may regulate conductarguably protected or prohibited by the NLRA if the

conduct is of only peripheral concern to the NLRA or if itis so deeply rooted in local law that it cannot be assumedthat Congress intended to preempt the application of statelaw.

7. The critical inquiry is whether the controversy presented tothe state court is identical to that which could be presentedto the Board.

8. Here, the controversies cannot fairly be called identical,since the focus of the Board's determinations would be onthe rights of strikers under federal law, whereas the statecourt claims would concern the rights of replacement

employees under state law.9. And at the same time the State has substantial interests inprotecting its citizens from misrepresentations that havecaused them grievous harm, and in providing a remedy toits citizens for breach of contract

Enforcement of Collective Bargaining Agreements1. Allis-Chalmers Corp v. LueckA provision in a CBA for health care was

preempted by the NLRA due to section 301a. In this case there was an implied duty to act in good faith in the labor

agreementb. To permit this to go agead as a state tort would deprive the parties of the

contractual grievance procedures2. Lingle v. Norge Div. of Magic Chef Inc.

a. Factsi. After petitioner notified her employer that she had been injured in

the course of her employment and requested compensation for hermedical expenses pursuant to the Illinois Workers' CompensationAct, she was discharged for filing an allegedly false worker'scompensation claim.

ii. The union representing petitioner filed a grievance pursuant to acollective bargaining agreement that protected employees fromdischarge except for "just" cause and that provided for arbitration

of disputes between the employer and any employee concerningthe effect or interpretation of the agreement. While arbitration wasproceeding, petitioner filed a retaliatory discharge action in anIllinois state court, alleging that she had been discharged forexercising her rights under the Illinois worker's compensationlaws.

iii. Respondent removed the suit to the Federal District Court on thebasis of diversity of citizenship, and filed a motion to dismiss the


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case as preempted by 301 of the Labor Management RelationsAct of 1947.

iv. The court dismissed the complaint as preempted, concluding thatthe retaliatory discharge claim was "inextricably intertwined" withthe collective bargaining provision prohibiting discharge without

just cause, and that allowing the state law action to proceed wouldundermine the arbitration procedures in the collective bargainingcontract.

v. The Court of Appeals affirmed.b. Issue

i. Whether the workers compensation case was preempted by theNLRA

c. Holdingi. Application of petitioner's state tort remedy was not preempted by

301.ii. An application of state law is preempted by 301 only if such

application requires the interpretation of a collective bargainingagreement.iii. If the resolution of a state law claim depends upon the meaning of

a collective bargaining agreement, the application of state law ispreempted and federal labor law principles -- necessarily uniformthroughout the Nation -- must be employed to resolve the dispute.

iv. Under Illinois law governing the tort of retaliatory discharge forfiling a worker's compensation claim, the employee must showboth that he was discharged or threatened with discharge and thatthe employer's motive was to deter the employee from exercisingrights under the Workers' Compensation Act or to interfere withthe exercise of those rights. Neither of those elements requires acourt to interpret any term of a collective bargaining agreement

v. The result in this case is consistent both with the policy offostering uniform, certain adjudication of disputes over themeaning of collective bargaining agreements and with cases thathave permitted separate fonts of substantive rights to remainunpreempted by other federal labor law statutes.

3. The Retaliatory lawsuita. Bill Johnsonss Restaurants v. NLRB - - the court found that the filing of a

well founded lawsuit may not be enjoined as an unfair labor practice evenif it would not have been commenced but for the plaintiffs desire to

retaliate against the defendant for exercising rights protected by the acti. A baseless lawsuit is not ok however

ii. In this case an employer sued striking employeesb. BE and K Construction v. NLRBthere is a class of cases which are

reasonably based but unsuccessful; these are not in violation of the NLRBi. in this case a lawsuit against striking employees was dismissed and

the employees filed an NLRB case


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c. Can-Am Plumbing v. NLRBthe above stated cases do not preventpreemption however

4. State Regulation of Unionization by Supervisorsa. Intro

i. Section 2(3) states that supervisors are excluded from theprotectionsii. Section 14(a) states that nothing within the act shall prohibitsupervisors from becoming or remaining a member of a labororganization, and no employer subject to the act shall be compelledto deem individuals defined herein as supervisors as employees forthe purpose of this law

b. Marine Engineers Beneficial v. Interlake S.S. coThe court deferred tothe expertise of the NLRB on whether MEBA members were supervisorsor a labor organization

c. Hanna Mining co v.District 2, MEBADue to the fact that MEBLA wasfound to be outside of the act as they were supervisors the state law was

not preemptedd. Beasley v.Food Fair of North Carolina14(a) prevents employers frombeing forced to treat supervisors as standard employees

i. You cannot force companies to keep supervisors who have joined alabor union

Exclusive Representation and Majority Rule1. J.I Case Co. v. NLRB

a. Factsi. JI Case Co offered each employee an one year contract which

agreed to furnish employment, to pay a specified rate and tomaintain hospital facilities1. About 75% of the employees signed these contracts

ii. In 1941, while these contracts were in effect, the CIO unionpetitioned for representative status, and despite the claim that thecontracts were a bar to union representation the Board directed anelection which the union won

iii. The company declined to bargain with the union because of theone year contracts which were still in effect

iv. The board held that the company was in violation of 8(5) in itsrefusal to bargain with the union and that the contracts were in

violation of collective bargaining rights under 7b. Issuesi. Whether the individual contracts bar union negotiation and

whether these contracts were unfair labor practicesc. Holding

i. Individual contracts cannot be used to bar CBAs or union activity2. Emporium Capwell v. Western Addition Community Orgainzation

a. Facts


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i. Employees felt they were being discriminated against because oftheir race.

ii. Union investigated allegations, made report to company, askedindividual employees to file grievances under union contract.

iii. Union agreed to process grievances through to arbitration ifnecessary.iv. Employees refuse to participate in grievance

v. Employees seem to be engaged in protected speech/traditionallyprotected activity.

b. Issuei. Whether the grievances have to be brought by the union

c. Holdingi. Section 9(a) has proviso allowing individual employee or group of

employees to present grievances to employer without bargainingrepresentative as long as it is not inconsistent with union contract.

3. THe Limits of Majority Rulea.

The two above cases show that the individual needs are subordinated tothe needs of the union

b. There are a number of positions the board takes to counteract thisi. Exclusion of worker with conflicts when forming the appropriate

bargaining unitii. Decertification election opportunities periodically

iii. The bill of rights for union members provides certain democraticrights and procedures within the union

iv. A member of the bargaining unit does not need to become amember of the union

v. On matters other than wages, hours and terms and conditions ofemployment there is no mandate to bargain with the majority unit

vi. Individual members can present grievances under 9(a)vii. There is a duty of fair representation but the union

4. Steele v. Louisville and Nashille R. Co.a. Facts

i. Respondent Brothehood is a labor organization which representedfiremen who were employed by railroads

ii. The Brotherhood was attempting to exclude black firemen from itsranks

iii. This led to increased benefits for white firemen, increasedpromotion for white firemen and a lack of hiring of black firemen

iv. Steele was replaced on his work by a white man who was hisjunior multiple times which caused him to be out of work

v. Alabama decided that there was no cuse of action and that therailroad was required to bargain with the Brotherhood because itheld the majority of the craft

b. Issue


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i. Whether the railway labor act imposes on a labor organization theduty to represent all employees in the craft without discriminationbecause of their race

c. Holdingi. Yes

1.

The minority would be left with no representation if theunion was not required to represent all people2. The union is responsible for representing all members of

the craft, whether they are union or nonunion3. There can be contracts made which are not advantageous to

all but it must occur because of some reason, not because ofrace, which is irrelevant to the work

5. Ford Motor Company v. Hoffmana. There are going to be differences in treatment in CBAs but this does not

make them invalidb. The union must be allowed to make reasonable decisions, and this does

not mean that all will be satisfied

The Individual and the Union

The Right to Fair Representation

The Source and Enforcement of the Unions Duty

1. JI Case Co v. NLRB -- Collective bargaining takes priority over individualcontracts

2. Steele v. Louisville and Nashville RRa union has a correlative duty to representall employees within the bargaining unit without hostile discrimination, fairly ,

impartially and in good faith3. NLRB v. Miranda Fuela union cannot induce discipline against one employee4. Independent Metal Workers, Local 1 (Hughes Tool Co)a racially segregated

bargaining unit engaged in an unfair labor practice when it failed to process anemployees grievance because he was black

5. Bell & Howell co v. NLRB; Handy Andy, INCa unions illegally discriminatorypolicy cannot be shown by the employer as a bar to initial certification

6. Decostello v. International Brotherhood of Teamstersa. The statute of limitations for section 301 is to be the federal statute of

limitations and that the pertinent period is to be borrowed from the NLRAand is to be 6 months

7. International Brotherhood of Electric Workers v. FoustRLA foes notcontemplate punitive damages against a union for a violation of the duty ofrepresentation

a. There were concerns about damaging the unions economic standing aswell as unduly interfere with the unions discretion in handling and settlinggrievances

8. Wooddell v. International Brotherhood of Electric Workers, Local 71


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a. Refusal to refer a member to a hiring hall for a discriminatory purpose is aviolation of 301

The Unions Duty in Contract Making

i. Airline Pilots Assn Intern v. ONeilla. Facts

i. After Continental Airlines, Inc., filed a petition for reorganizationunder Chapter 11 of the Bankruptcy Code, it repudiated itscollective bargaining agreement with petitioner ALPA.

ii. An acrimonious strike ensued, during which Continental hiredreplacement pilots and reemployed several hundred crossoverstrikers.

iii. Two years into the strike, Continental announced in its"Supplementary Base Vacancy Bid 1985-5" (85-5 bid) that itwould fill a large number of anticipated vacancies using a systemthat allows pilots to bid for positions and that, in the past, hadassigned positions by seniority.

iv. Although ALPA authorized strikers to submit bids, Continentalannounced that all of the positions had been awarded to workingpilots.

v. ALPA and Continental then agreed to end the strike, dispose ofsome related litigation, and reallocate the positions covered by the85-5 bid.

vi. Striking pilots were offered the option of settling all outstandingclaims with Continental and participating in the 85-5 bid positions'allocations, electing not to return to work and receiving severancepay, or retaining their individual claims against Continental andbecoming eligible to return to work only after all the settling pilots

had been reinstated.vii. Thus, striking pilots received some of the positions previously

awarded to the working pilots.viii. After the settlement, respondents, former striking pilots, filed suit

in the District Court against ALPA, charging, inter alia, that theunion had breached its duty of fair representation.

ix. The court granted ALPA's motion for summary judgment, but theCourt of Appeals reversed.

x. It rejected ALPA's argument that a union cannot breach the fairrepresentation duty without intentional misconduct, applying,instead, the rule announced in Vaca v. Sipes, that a union violates

the duty if its actions are either "arbitrary, discriminatory, or in badfaith,"

xi. With respect to the test's first component, the court found that anonarbitrary decision must be (1) based upon relevant permissibleunion factors, (2) a rational result of the consideration of thosefactors, and (3) inclusive of a fair and impartial consideration of allemployees' interests.


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xii. Applying that test, the court concluded that a jury could find thatALPA acted arbitrarily by negotiating a settlement less favorablethan the consequences of a complete surrender

b. Issuec. Holding

i.

The tripartite standard announced in Vaca v. Sipes, supra, appliesto a union in its negotiating capacity. Thus, when acting in thatcapacity, the union is not, as ALPA contends, required only to actin good faith and treat its members equally and in anondiscriminatory fashion. Rather, it also has a duty to act in arational, nonarbitrary fashion to provide its members fair andadequate representation

ii. The final product of the bargaining process may constituteevidence of a breach of the fair representation duty only if, in lightof the factual and legal landscape, it can be fairly characterized asso far outside of a "wide range of reasonableness that it is wholly

"irrational" or "arbitrary."iii. The resolution of the dispute as to the 85-5 bid positions was wellwithin the "wide range of reasonableness" that a union is allowedin its bargaining. Assuming that the union made a bad settlement,it was by no means irrational when viewed in light of the legallandscape at the time of the settlement.

The Individual and His Grievance

1. Vaca v. Sipesa. Facts

i. Petitioners, union officials, were sued in a state court by a unionmember who alleged wrongful discharge by his employer in

violation of the collective bargaining agreement and the union'sarbitrary refusal to take his grievance to arbitration under the fifthand final step of the bargaining agreement's grievance procedures.

ii. The employee, whose duties required strenuous activity, wasdischarged on the ground of poor health.

iii. During the fourth grievance step, the union sent the employee to aphysician for a complete examination.

iv. The report was unfavorable to the employee, and the union decidednot to take the grievance to arbitration.

v. After a jury verdict for the employee, the trial judge set aside theverdict on the ground that the NLRB had exclusive jurisdiction

over the controversy.vi. The Kansas City Court of Appeals affirmed, but the Missouri

Supreme Court reversed and ordered the jury's verdict reinstated.b. Issue

i. Whether the union violated its duty of representation by not takingVacas case to arbitration

c. Holding


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i. Since the union's duty, as exclusive agent, fairly to represent allmembers of a designated unit is based on federal statutes, federallaw governs the employee's cause of action for breach of that duty.

ii. Preemption is not proper in this case because there is no indicationthat congress intended preemption to occur

iii.

A union breaches its duty of fair representation when its conducttoward a member of the designated unit is arbitrary, discriminatoryor in bad faith, but it does not breach that duty merely because itsettles a grievance short of arbitration, and the Missouri SupremeCourt erred in upholding the jury's verdict solely on the groundthat the evidence supported the employee's claim of wrongfuldischarge

iv. As a matter of federal law, the evidence does not support a verdictthat the union breached its duty, as the employee, who had noabsolute right to have his grievance arbitrated, failed to provearbitrary or bad faith conduct by the union in processing his

grievance.v. The claimed damages, which were primarily those suffered as aresult of the employer's alleged breach of contract, should not havebeen all charged to the union, and, if liability were found, it shouldhave been apportioned between the employer and the unionaccording to the damages caused by the fault of each

d. Notesi. Breininger v. Sheet Metal Workersthere is no preemption for

failure to represent as the sections did not oust state courts fromenforcing that duty

ii. Union News co. V. Hildreththe union is oven the power toconstrue terms of a just cause provosion; the union needs to actwithin the collective interest of those who by law and contract theunion was charged with protecting

1. There is no issue that the company and the union workedtogether

iii. Simmons v. Union news Cothis case upheld Union Newsiv. Essentially in the above cases the court allowed grievance settling

between the union and the employerv. Hines v. Anchor Motor Freightjust as the unions breach of the

duty of fair representation in settling a grievance before arbitrationrelieves the employee in the action against the employer, so to doesthe unions subversion of the arbitration process itself remove thebar of the arbitrators decision

vi. United Steelworkers v. Rawson -- a breach of DFR occurs onlywhen a unions conduct toward a member of the collective

bargaining unit its arbitrary, discriminatory or in bad faith1. Mere negligence is not included in this

vii. United Food and Commerical Workers -- where a union handlesan employees grievance so lightly as to suggest an egregious


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disregard for her rights it can be said that there was a breach ofDFR

2. Summers Articlea. For the rights of the individial see page 993

3. Bowen v. USPSa.

Factsi. After petitioner employee was discharged by respondent (USPS) as

a result of an altercation with another employee, he filed agrievance with respondent Union as provided by the applicablecollective bargaining agreement.

ii. When the Union declined to take his grievance to arbitration,petitioner sued respondents in Federal District Court, claiming thathe had been wrongfully discharged and seeking damages andinjunctive relief.

iii. Entering judgment on a jury verdict against both respondents, theDistrict Court held that the USPS had discharged petitioner

without just cause, and that the Union had handled his grievance inan arbitrary manner.iv. Accordingly, the court upheld the jury's apportionment of damages

between the USPS and the Union.v. The Court of Appeals affirmed except for the award of damages

against the Union, holding that, because petitioner's compensationwas payable only by the USPS, reimbursement for his lost earningscontinued to be the USPS's exclusive obligation, and that hence noportion of the deprivations was chargeable to the Union.

b. Issuei. Whether the petitioner is entitled to damages from both the USPS

and the Unionc. Holding

i. Where the District Court's findings, accepted by the Court ofAppeals, established that petitioner's damages were caused initiallyby the USPS's unlawful discharge and were increased by theUnion's breach of its duty of fair representation, apportionment ofthe damages was required.

ii. The governing principle ofVaca is that, where an employee provesthat his employer violated the collective bargaining agreement andthat his union breached its duty of fair representation, liability is tobe apportioned between the employer and the union according tothe damages caused by the fault of each

iii. Of paramount importance is the right of the employee, who hasbeen injured by both the employer's and the union's breach, to bemade whole

iv. When the union, as the employee's exclusive agent, waivesarbitration or fails to seek review of an adverse decision, theemployer should be in substantially the same position as if theemployee had had the right to act on his own behalf and had done


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so. In the absence of damages apportionment where the default ofboth the employer and the union contributes to the employee'sinjury, incentives to comply with the grievance proceeding wouldbe diminished, and to impose total liability solely on the employercould affect the willingness of employers to agree to arbitration

clauses.d. Notesi. Clayton v. International Union, UAWit is not always necessary

to exhaust the grievance procedure of the union as long as thecontractual procedure was completed

Union Security and the Encouragement of Union Activity

Union Security and the Use of Union Dues

1. NLRB v. General Motorsa. An "agency shop" arrangement, which leaves union membership optional

with the employees but requires that, as a condition of continuedemployment, nonunion employees pay to the union sums equal to theinitiation fees and periodic dues paid by union members, does not, initself, constitute an unfair labor practice under 8(a)(3) of the NationalLabor Relations Act, and is not prohibited by 7 or 8.

b. In a State which does not prohibit such an arrangement, therefore, anemployer commits an unfair labor practice, within the meaning of 8(a)(5), when it unconditionally refuses to bargain with a certified unionof its employees over the union's proposal for the adoption of such anarrangement.

2. International Association of Machinists v. Streeta. Facts

i. A group of railroad employees sued in a Georgia State Court toenjoin enforcement of a union shop agreement entered intobetween a group of railroads and labor unions of their employeesunder 2, Eleventh, of the Railway Labor Act, which required allemployees to join the union and to pay initiation fees, assessmentsand dues in order to keep their jobs.

ii. The complaint alleged that a substantial part of the money each ofthese employes was thus compelled to pay was used over hisprotest to finance the campaigns of political candidates whom heopposed, and to promote the propagation of political and economic

doctrines, concepts, and ideologies with which he disagreed.iii. The trial court found that the allegations were fully proved, and

that, in these circumstances, the union shop agreement violated thecomplaining employees' rights under the First Amendment.

iv. It enjoined enforcement of the union shop agreement and awardedsome of the employees judgments for the money they had beenrequired to pay.

v. The Supreme Court of Georgia affirmed.


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b. Holdingi. InRailway Employees' Dept. v. Hanson,351 U. S. 225, this Court

held that enactment of the provision of 2, Eleventh, whichauthorizes union shop agreements between interstate railroads andunions of their employees was a valid exercise by Congress of its

powers under the Commerce Clause and did not, on its face,violate the First Amendment or the Due Process Clause of the FifthAmendment, but it reserved decision on the constitutionalquestions presented in this case by the actual application of thatsection and the union shop agreements entered into there under

ii. Though the record in this case adequately presents thoseconstitutional questions, it is not necessary for this Court to decidethe correctness of the constitutional determinations made by theGeorgia Courts, because 2, Eleventh, denies authority to a union,over the employee's objection, to spend his money for politicalcauses which he opposes.

c.

Notesi. Communications Workers v. Beck -- the court upeld its decisionwhen it came to expendature of funds under the NLRA as well asthe RLA

3. Marquez v. Screen Actors Guild, Inca. Facts

i. Naomi Marquez, part-time actress, auditioned successfully for arole in a television series produced by Lakeside Pictures.

ii. Pursuant to their collective bargaining agreement, Lakesidecontacted the Screen Actors Guild (SAG) to confirm that Marquezmet the "union security clause" of the agreement that requiresunion "membership" as a condition for employment.

iii. The clause stated one must be a member "in good standing."iv. Subsequently, Marquez was denied the part because she had not

paid her dues.v. Marquez filed suit alleging SAG breached its duty of fair

representation with its union security clause.1. First, Marquez argued she should have been made aware of

her established legal right not to join the union, but only topay for its representational activities.

2. Second, Marquez claimed that the clause requiredrepetitious thirty-day previous work periods every timemotion picture employment ceased.

vi. The District Court summarily ruled against Marquez because theclause followed the National Labor Relations Act; therefore, it didnot breach its duty of fair representation.

vii. The Court of Appeals affirmed the decision on the first claim, butheld the second claim was in the jurisdiction of the National LaborRelations Board.

b. Issue


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i. Can collective bargaining contracts require membership foremployment without articulating what it means to be "in goodstanding?"

c. Holdingi. Yes.

ii.

In a unanimous decision, announced by Justice Sandra DayO'Connor, the Court ruled collective bargaining contracts do nothave to spell out what it means to be "in good standing."

iii. Justice O'Conner noted that requiring membership to be specifiedin a contract would force all terms to be specified.

iv. There would be no limit.d. Notes

i. Ellis v. Brotherhood of Railway, Airline and SS Clerksthe courtfound that many items in the dues were nor related to politicalexpenditures and thus only certain items needed to be reimbursedto those wishing them

1.

Organizing2. Certain Litigation3. Political Contributions

ii. Locke v. Karassthe court disallowed payment of a service feewhich went to non-local litigation unless that litigation would bechargeable if it were local and as long as it is reciprocal in nature

iii. California Saw and Knife Workersa number of decisions werereached

1. There must beBecknotice given to all new workers2. All current employees must be apprised of their Beckrights3. There must be reasonable notice of a need to pay dues

before an employee can be discharged4. Beckrights can only be used if a person is not part of the

union5. Expenses made outside of the bargaining unit are only

chargeable if they benefit the local union throughmembership in the parent organization

6. No unit by unit accounting is needed to be done forlitigation provided it is germane to the unions CBA

7. It is only necessary to set for the major categories of unionexpenditure and the union may lawfully denote that certainof those categories were mixed without setting for anyadditional details

8. The union must supply an audit9. All challenges to the IAM dues restriction are consolidated

for arbitrationiv. Air Line Plots Assn v. MillerUnless the agency fee objectors

agree to the procedures are not required to exhaust arbitrationremedies


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State Right to Work Lawsi. Congress preserved the state right to work laws in 14(b)

ii. The supreme court also upheld these laws in deciding that states could not compelthe joining of a union

iii. Retail Clerks, Intern, Ass v. Schermerhornthe only kind of membership whichmay be lawfully demanded of an employee is his payment of a service fee to theunion measured by periodic dues and initiation fees

The Union Hiring Halli. Local 357, International Bhd of Teamsters v. NLRB

a. Factsi. An association of motor truck operators entered into a collective

bargaining agreement with the Brotherhood of Teamsters andseveral of its local unions which, in effect, required the operatorsto employ casual employees "on a seniority basis" through a hiringhall operated by one of the unions, "irrespective of whether such

employee is or is not a member of the Union."ii. A union member obtained casual employment with an operator

independently of the union and the hiring hall, and he wasdischarged when the union complained.

iii. The National Labor Relations Board held that the hiring hallarrangement was unlawfulper se, and that the employer hadviolated 8(a)(1) and 8(a)(3) and the union had violated 8(b)(2)and 8(b)(1)(A) of the National Labor Relations Act, as amended.It ordered them, inter alia, to reimburse all casual employees forfees and dues paid to the union during the period covered by thecomplaint.

b. Holdingi. The Board was not authorized under 10(c) to require

reimbursement of dues and fees paid to the unionii. The Board erred in holding that the hiring hall arrangement was

unlawfulper se, since such arrangements are not unlawful unlessthey in fact result in discriminations prohibited by the Act.

Benefits for Union Officials

1. Local 900, International Union of Electrical Workers v. NLRB (Gulton Electro-Voice)

a. Factsi. Petitioner, a collective bargaining agent, sought reversal of anorder by the respondent, the National Labor Relations Board in an

action that held unlawful a contract clause that grantedsuperseniority, with regard to layoff and recall, to two ofpetitioner's officers.

ii. In holding the contract unlawful, respondent overruled priorprecedent and established that superseniority with regard to layoff


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and recall was lawful only when extended to union officers whowere involved in on-the-job contract administration.

iii. On review, the court affirmed and upheld respondent's newprinciple by enforcing the order in its entirety.

iv. Respondent's action must be upheld if it was reasonable andsupported by the record.v. Because superseniority for union officials could affect employees'decisions regarding selection of representatives, the discriminationrespondent found was not amenable to waiver.

vi. Retroactivity was necessarily an issue any time adjudicationresulted in a new rule of law, so petitioner did give notice ofobjection.

vii. However, the issue of superseniority was not one of firstimpression and there was no evidence to show that petitioner reliedon the former rule.

b. Holdingi.

Court affirmed respondent's order, holding that there would be nogreat hardship in enforcing the order because there was noevidence that petitioner relied on the old rule and there wasnothing to oppose the statutory interest in applying the new rule.

Discipline of Union Members and the National Labor Relations Act1. NLRB v. Allis-Chalmers MFG Co.

a. Factsi. Lawful economic strikes were called at two of respondent Allis

Chalmers' plants in accordance with duly authorized unionprocedures by the locals of the union representing the employees.

ii. Some union members crossed picket lines and worked during thestrikes.

iii. After the strikes were over, the locals brought proceedings againstthese members, imposed fines of $20 to $100, and sued in statecourts to collect the fines.

iv. The collective bargaining agreement contained a union securityclause which required each employee to become and remain "amember of the union to the extent of paying his monthly dues."

v. Allis-Chalmers filed unfair labor practice charges against the localsalleging violation of 8(b)(1)(A) of the National Labor RelationsAct.

vi. The NLRB held that, even if the union action were restraint orcoercion proscribed by that section, the conduct came within theproviso that the section "shall not impair the right of a labororganization to prescribe its own rules with respect to theacquisition or retention of membership therein."

vii. The Court of Appeals reversed, holding that the union conductviolated 8(b) (1)(A).

b. Issue


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i. Whether the union can discipline members for crossing picketinglines

c. Holdingi. The history of legislative action surrounding 8(b)(1)(A)'s

prohibition of union activity to "restrain or coerce" employees in

the exercise of rights guaranteed by 7 justifies the conclusion, inlight of the imprecision of the words "restrain or coerce," and therepeated refrain throughout the debates that Congress did notpropose limitations on the internal affairs of unions, that Congressdid not intend 8(b)(1)(A) to prohibit the imposition of reasonablefines on full union members who decline to honor an authorizedstrike or to prohibit attempts to collect such fines.

ii. Since Allis-Chalmers offered no evidence that the fined employeesenjoyed other than full union membership, the contrary will not bepresumed. The question of the applicability of the statute toemployees whose membership was limited to the obligation to pay

monthly dues is not presented here.2. Scofield v. NLRBa. Facts

i. Petitioners, union members employed by the Wisconsin MotorCorp. on a piecework basis, were each fined and suspended bytheir union (without endangering their job retention) for violating aunion rule relating to production ceilings.

ii. The union and employer had bargained over the ceiling level, butthe collective bargaining agreement does not foreclose theemployer's paying employees for work performed over the ceiling.

iii. Petitioners refused to pay the fines, the union brought suit in a statecourt to collect them, and petitioners then initiated charges beforethe National Labor Relations Board (NLRB), arguing that unionenforcement of the rule through collection of fines was an unfairlabor practice.

iv. The NLRB found no violation of the National Labor Relations Act(NLRA) and the Court of Appeals upheld its ruling.

b. Issuei. Whether Employees can be disciplined for working above the

production ceiling when it had not been foclosed that they couldnot

c. Holdingi. Petition for certiorari in this case, filed within 90 days of the

decree but not of the opinion, where no notice of entry of anyjudgment at time of the opinion had been given petitioners, wastimely

ii. Section 8(b)(1) of the NLRA permits a union to enforce a properlyadopted rule which reflects a legitimate union interest, impairs nostatutory labor policy, and is reasonably enforced against unionmembers who are free to leave the union and escape the rule, while


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maintaining job security under the union shop clause by payingdues.NLRB v. Allis-Chalmers Mfg. Co.

iii. Arguments that the union rule in this case contravened a statutorylabor policy were inadequate here. That rule did not demonstrablyimpede the collective bargaining process, cause a breach of the

collective bargaining agreement, establish featherbedding withinthe meaning of the statute, induce discrimination by the employeragainst any class of employees, or represent any dereliction by theunion of its duty of fair representation, and, in view of theacceptable manner of its enforcement by reasonable fines tovindicate a proper union concern it does not constitute the restraintor coercion prohibited by 8(b)(1)(A).

3. Pattern Makers League of North America v. NLRBa. Facts

i. Petitioner national labor union's constitution provides thatresignations from the union are not permitted during a strike.

ii.

The union fined 10 members who, in violation of this provision,resigned during a strike by petitioner local unions and returned towork.

iii. Respondent employer representative thereafter filed charges withthe National Labor Relations Board (Board), claiming that suchlevying of fines constituted an unfair labor practice under 8(b)(1)(A) of the National Labor Relations Act, which makes it anunfair labor practice for a union to restrain or coerce employees inthe exercise of their 7 rights.

iv. The Board agreed, and the Court of Appeals enforced the Board'sorder.

b. Issuei. Whether a union may discipline members who resign from the job

and then go back to work during a strikec. Holding

i. In related cases this Court has invariably yielded to Boarddecisions on whether fines imposed by a union "restrained orcoerced" employees. Moreover, the Board has consistentlyconstrued 8(b)(1)(A) as prohibiting the fining of employees whohave resigned from a union contrary to a restriction in the unionconstitution. Therefore, the Board's decision in this case is entitledto this Court's deference.

ii. The Board was justified in concluding that, by restricting the rightof employees to resign, the provision in question impaired thecongressional policy of voluntary unionism implicit in 8(a)(3) ofthe Act

4. Union Discipline of Supervisorsa. In a number of industries the supervisors retain union membership because

of the mobility of the work and the chance that they will not besupervisors on the next job


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b. Neither the supervisor nor employee have a redress under A due to it onlybeing for employees but they may have an option under B

c. Florida Power and Light co v. Electical workersSupervisors may befigned if they report to work during a stike to perform rank and file workthat the strikers would have performed

d.

The courts have since expanded this notion

State Issues1. Independence National Education Acociation et al. v. Independence School

Districta. Facts

i. The board unilaterally accepted a collaborative team policy whichchanged the terms of employment by members of threeassociations

ii. This new policy conflicted with the memoranda of understandingiii. This led to differences in the grievance procedure, payroll

deductions, and discipline and dischargeb. Issue

i. Does the right to organize and to bargain collective apply to publicemployees as well as private employees

ii. If the public employer negotiates an agreement with its employeegroups, may the public employer unilaterally impose a newemployment agreement that contradicts the terms of the agreementin effect

c. Holdingi. Yes

1. This simply goes to the plain language of the Missouristatute which stated employees shall have the power to

bargain collectively2. This is also in line with all of the case law reguarding this

matter3. However it is not necessary for the employer to do so

ii. No1. However there is an issue of how long the contract was

binding for and this will be discussed on remand2. Case law has held that there cannot be unilateral changes

made to the terms of teachers contracts2. Eastern Missouri Coalition of Police v. City of Chesterfield

a. Factsi. The city of Chesterfield declined to voluntarily recognize the

Union as the exclusive bargaining unitii. The city then declined to establish a procedural framework for

collective bargainingiii. The trial court found for the Unioniv. The city contends that the

1. Union lacks standing


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2. City has no legal duty to establish collective bargainingprocedures

3. The separation of powers prohibits the court from orderingthe city to adopt such procedures

b. Issuei.

Whether the union has legal standing to sueii. Whether the city has a legal duty to establish collective bargainingprocedures

iii. Whether the separation of powers prohibits the court from orderingthe city to adopt such procedures

c. Holdingi. Yes

1. The Supreme Court has allowed this2. Even though the cards were not authenticated offic

unions and their members

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