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Overview

* Labor unions are organizations that negotiate with employers on behalf of employees.[1]


* The phrase "trade union" is sometimes used as a synonym for "labor union," but it is also used in a more narrow sense to signify "a labor union of workers in related crafts, as distinguished from general workers or a union including all workers in an industry."[2] [3]


* Federal law defines a "labor organization" as:


any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.[4]


* Some labor organizations also support political candidates and engage in issue-based advocacy. For details, see the section on Politics and Activism.


* A "bargaining unit" is a group of employees represented by a union.[5]


* Collective bargaining, as defined by Cornell University's Legal Information Institute, "consists of negotiations between an employer and a group of employees so as to determine the conditions of employment."[6]


* With regard to unionization in most of the private sector:

  • A federal agency called the National Labor Relations Board (NLRB) has the authority to conduct elections for installing unions at workplaces and to issue rulings about labor-related disputes and other such matters.[7] [8] [9] [10] [11]
  • The NLRB is controlled by five members and a General Counsel who are appointed by the President with the advice and consent of the Senate. These appointees serve for staggered five-year terms.[12] [13]
  • The NLRB acts through "regional and other field offices located in major cities in various sections of the country."[14] [15]
  • By tradition (not law), the President appoints members of the opposing political party so that the Board contains three members of the President's party and two from the opposition.[16]
  • As of November 2014, all the NLRB members and the General Counsel were appointed by President Obama. Three of them are Democrats, and two of them are Republicans.[17] [18] [19]

* Unionization in the railroad and airline industries does not fall under the authority of the NLRB but a law first enacted in 1926 (and since modified) called the Railway Labor Act.[20] [21]


* With regard to unionization in most federal government agencies:

  • A federal agency called the Federal Labor Relations Authority (FLRA) has the authority to conduct elections for installing unions at workplaces and to issue rulings about labor-related disputes and other such matters.[22] [23]
  • The FLRA is controlled by three members and a General Counsel who are appointed by the President with the advice and consent of the Senate. These appointees serve for staggered five-year terms.[24] [25]
  • By law, no more than two of the three members of the FLRA may be of the same political party.[26]
  • The FLRA acts through regional offices.[27]
  • As of November 2014, all the FLRA members and the General Counsel were appointed by President Obama.[28] [29] [30] [31]

* The U.S. Postal Service is not a federal agency but a government-owned corporation, and thus it's unionization does not fall under the purview of the FLRA but a separate legal framework.[32] [33]


* Federal law does not allow for the unionization of the U.S. armed forces or employees of the Federal Bureau of Investigation, Central Intelligence Agency, Secret Service, National Security Agency, Government Accountability Office, and several other agencies.[34] [35]


* With regard to unionization in state and local government agencies:

  • As of 2013, 31 states and the District of Columbia allow most public employees to bargain collectively through unions, ten states allow only certain public employees to do so (such as police and teachers), and 10 states do not allow public employees to bargain collectively.
  • Laws and regulations for installing unions at workplaces and handling labor disputes vary widely by state.
  • In states that allow government employees to bargain collectively, key decisions are often made by Public Employees Relations Boards (PERBs).[36] [37] [38] [39]

Private Sector Organizing and Decertifying

NLRB secret ballot elections


* Most private-sector unions have been established at workplaces through secret ballot elections in which a majority of employees vote to approve a bargaining representative.[40] [41] This process typically entails the following major steps:

  • Union organizers identify a preliminary bargaining unit of employees that they want to unionize, and organizers gather signatures from these employees to show that at least 30% of them are interested in being represented by a union.[42] [43]
  • Union organizers submit these signatures to the National Labor Relations Board (NLRB), which determines if the proposed bargaining unit is appropriate and if other legal requirements to conduct a union election are met.[44] [45] [46] [47]
  • The NLRB conducts a secret ballot election. If the majority of employees vote to approve a union, the union becomes "the exclusive representatives of all the employees" in the bargaining unit "for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment…."[48] [49]

* The following legal intricacies bear upon the steps above:

  • What constitutes an "appropriate" bargaining unit can be a matter of contention (details below).
  • Under federal law, the NLRB must have "reasonable cause to believe" that "a substantial number of employees … wish to be represented" by a union before conducting a secret ballot election. The NLRB has the authority to regulate what this means, and it requires the signatures of at least 30% of employees to meet this standard.[50] [51] [52]
  • Because construction work sometimes involves short-term projects, federal law allows unions to represent certain workers even if the majority of employees in a bargaining unit have not chosen to unionize.[53] [54]

* In the federal government's 2013 fiscal year, 94% of all NLRB elections to establish a union took place within 56 days from the filing of the election petition. The median time was 38 days.[55]

 


Voter Intent, Lobbying, and Intimidation in NLRB elections


* In NLRB-conducted secret ballot elections to establish unions at private-sector workplaces:

  • The time and place of the election is set by the NLRB.[56] [57]
  • NLRB agents count the ballots, and all parties are allowed to be present during this process.[58]
  • The union or employer may contest the results of an election by filing objections with the NLRB.[59] [60] [61]

* Federal law prohibits employers and unions from encouraging or discouraging employees to support unions by rewarding, punishing, or threatening to reward or punish employees. This restriction applies to hiring, tenure, or "any term or condition of employment."[62] [63] [64]


* Federal law states that the above prohibitions do not censor employers or unions from expressing "any views, argument, or opinion," as long as "such expression contains no threat of reprisal or force or promise of benefit" to employees.[65] [66]


* The NLRB has adopted a policy of setting aside any election that "was accompanied by conduct that the NLRB thinks created an atmosphere of confusion or fear of reprisals and thus interfered with the employees' freedom of choice." Per the NLRB:


In any particular case the NLRB does not attempt to determine whether the conduct actually interfered with the employees' expression of free choice, but rather asks whether the conduct tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free expression of the employees' choice, the election may be set aside.[67] [68] [69]


* The NLRB and federal courts have created the following rules for private-sector union election campaigns:

  • Employers are required to give the unions the names and home addresses of all employees who are eligible to vote.[70] [71]
  • Union organizers can visit employees at their homes to lobby them, but employers cannot.[72]
  • Employers can hold mandatory group meetings during work hours to lobby employees, if the employers pay employees full compensation for their time.[73] [74] [75] [76] [77]
  • Employers cannot call employees into a superior's office to lobby them.[78]
  • Employers cannot ask employees how they intend to vote.[79] [80] [81] [82]
  • Union organizers, advocates, and opponents who are company employees can lobby their coworkers on company property and during nonworking hours in nonworking areas (such as lunch rooms).[83] [84]
  • Union organizers, advocates, and opponents who are company employees can lobby their coworkers on company property and during work hours "unless the employer can demonstrate that a restriction is necessary to maintain production or discipline."[85] Thus, if the company has a policy forbidding all forms of solicitations and lobbying during work hours, this also applies to union-related actions.[86] [87]
  • Employers can prohibit non-employees from lobbying on company property unless it is "impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer's premises…."[88] [89]
  • Employers and unions are banned from giving "speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election."[90]
  • Unions can videotape and photograph employees who support or reject a union, and unions can circulate these videos and pictures without the consent of the recorded employees.[91] Employers generally cannot engage in such activities, but they can videotape union organizing activities if the employer has a "reasonable basis to expect misconduct," such as violence, trespassing, or vandalism.[92] [93] [94]

* In cases where the NLRB decides that an election rule has been broken, it typically conducts a rerun election. However, in at least two such cases, the NLRB has ordered employers to recognize and bargain with unions without having a rerun election.[95]


* In addition to setting aside elections, when the NLRB determines that an employer or union has committed an "unfair labor practice," federal law instructs the NLRB to require the offender to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay…."[96]


* In the federal government's 2013 fiscal year, NLRB actions led to reinstatement offers for 1,352 employees, and the NLRB recovered $16,245,665 "on behalf of employees as backpay or reimbursement of fees, dues, and fines."[97]


* Resistance or interference with the legal powers of the NLRB is punishable under federal law by fines of up to $5,000 and imprisonment for up to a year.[98]

 


Unionization Without NLRB Elections (Corporate Campaigns and Card Check)


* Federal law requires that "the majority of the employees" in a private-sector bargaining unit approve of a union before it becomes the exclusive representative of the employees. However, the law does not specify how to determine if a majority approves of a union except when an "employer declines to recognize" a union supported by a "substantial number of employees." In such cases, the law requires the NLRB to conduct an "election by secret ballot."[99] [100] [101] [102]


* The U.S. Supreme Court and NLRB members appointed by Democrats and Republicans have interpreted the above-cited law to mean that if an employer chooses to recognize a union, the union can become the exclusive representative of the employees through evidence of majority support other than an NLRB election. This can be "as informal as employees walking into the owner's office and stating they wish to be represented by a union."[103] [104] [105] [106]


* To pressure employers to accept unionization without an NLRB secret ballot election, unions sometimes conduct "corporate campaigns."[107] [108] [109] Per the Encyclopedia of U.S. Labor and Working-Class History, "A corporate campaign is a mobilization of the labor movement and the community to tarnish a corporation's image and to inflict serious economic damage" on it.[110]


* In an article about corporate campaigns published by Labor Research Review, union organizer Joe Crump wrote:


Organizing is war. The objective is to convince employers to do something that they do not want to do. That means a fight. If you don't have a war mentality, your chances of success are limited. Organizing without the NLRB means putting enough pressure on employers, costing them enough time, energy and money to either eliminate them or get them to surrender to the union.[111]


* In corporate campaigns, unions often collaborate with environmental organizations, government agencies, corporations, politicians, journalists, entertainers, and other parties to financially harm corporations until they agree to a union's demands. Strategies employed in such campaigns include:

  • boycotts,
  • disrupting shareholder meetings,
  • "targeting the company's largest purchasers,"
  • putting "pressure on interlocking sectors of the business and financial community in hopes of isolating the offending employer,"
  • reporting the "target company" to government regulators,
  • supplying the media with "some 'juicy' information on a targeted employer's business practices,"
  • "conflict escalation," and
  • "divide and conquer" tactics.[112] [113] [114] [115] [116] [117] [118] [119]

* Per a 1979 Harvard Crimson article profiling and interviewing Ray Rogers, the primary founder and leader of corporate campaigns:


Rogers' thoughts and actions are as much influenced by his past as they are by Saul Alinsky and his book "Rules for Radicals." … And his overall strategy against [textile manufacturer J.P.] Stevens is directed by Alinsky's gospel, "Pick the target, freeze it, personalize it, and polarize it."[120] [121] [122] [123]


* When unions succeed in pressuring employers to forgo an NLRB secret ballot election, they typically conduct "card check" campaigns in which union organizers lobby employees to sign cards accepting a union. If the organizers obtain signatures from a majority of employees in a bargaining unit, the union becomes the exclusive representative of all the employees in the unit.[124] [125] [126] [127]


* In 1969, the U.S. Supreme Court unanimously ruled in NLRB v. Gissel Packing Company that card check campaigns are "admittedly inferior to the election process," but they can still "adequately reflect employee sentiment" and are not banned by federal law.[128]


* For federal, state, and local political elections, all U.S. states have banned ballots that are not cast in private and do not reveal all the available choices. Such ballots, which are called "party ballots," were regularly used for political contests in the 1800s. Because this enabled activists to intimidate citizens, all U.S. states and numerous Western democracies banned party ballots and enacted the following three requirements:

  1. Voters have a right to cast their ballots in private.
  2. Ballots must display all the available options (not just one option or party).
  3. Lobbying is forbidden in and around polling places so that people can cast their votes without pressure from others.[129] [130] [131] [132] [133]

* Union card check campaigns are not required to comply with any of the three principles above. In such campaigns:

  1. Voters cannot cast their ballots in private.
  2. The cards can display only the option to accept a union (not to reject it).
  3. Union organizers can lobby employees in public and at employees' homes to sign union acceptance cards as the organizers watch over them.[134] [135]

* With regard to union organizers pressuring employees to sign cards, the Gissel court wrote that the "same pressures are likely to be equally present" in card check campaigns as secret ballot elections, because "election cases arise most often with small bargaining units" where "virtually every voter's sentiments can be carefully and individually canvassed."[136]


* The Gissel ruling did not apply a different standard to large bargaining units, and it drew no distinction between the pressures of the following two scenarios:

  1. Union organizers asking employees how they intend to vote in a secret ballot election
  2. Union organizers asking employees to sign a union acceptance card in the presence of union organizers[137]

* The Gissel ruling also stated that if union organizers collect employee signatures for a card check campaign without telling employees what the cards mean, the signed cards are still valid. The court also applied this standard to "dual purpose cards," which are cards that (1) petition the NLRB to hold a secret ballot election and (2) authorize a union to represent the employees. The court ruled that if union organizers tell employees that the purpose of getting their signature is to hold an election, but they do not mention the other purpose of the card, the signed cards are still valid for both purposes and can be used to authorize a union without an election. As long as the language on the card is "unambiguous," the court held that:


employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.[138] [139]


* The Gissel ruling did not address cases in which employees who sign the cards do not speak English or are illiterate.[140]


* The Gissel ruling did not address the issue that employee signatures collected over extended periods of time may not reflect the will of the majority at any point in time.[141] [142]


* In a 1992 Supreme Court ruling in Burson v. Freeman, the Justices unanimously agreed that secret ballots are necessary to prevent voter intimidation in political elections. The court split over whether a larger campaign-free zone outside of polling places is necessary, with the majority ruling (5-3) that it was.[143]


* In 2007, 227 Democrats and 7 Republicans in the U.S. House of Representatives sponsored a bill called the "Employee Free Choice Act."[144] This legislation would have eliminated all NLRB secret ballot elections to certify unions. The bill directed the NLRB to stop conducting elections and to certify unions as the exclusive representative of all employees in a bargaining unit if a majority signs a union acceptance card.[145] [146]


* The bill left in place a preexisting law that requires an NLRB secret ballot election to decertify a union. Thus, under the new law, all unions would be certified under card check campaigns, but unions could only be decertified through NLRB secret ballot elections.[147] [148]


* The bill passed the U.S. House of Representatives with 93% of Democrats voting for it and 99% of Republicans voting against it.[149]


* Senate rules allow for a "filibuster" in which a vote to pass certain bills can be blocked unless 60 of the Senate's 100 members agree to let it take place.[150] [151] The bill failed to pass a filibuster with 100% of Democrats voting for it and 98% of Republicans voting against it.[152] [153]


* The primary sponsor of the Employee Free Choice Act was George Miller of California.[154] In 2001, Miller was the lead author of a letter to government officials in Mexico, which stated:

 

As members of Congress of the United States who are deeply concerned with international labor standards and the role of labor rights in international trade agreements, we are writing to encourage you to use the secret ballot in all union recognition elections.


We understand that the secret ballot is allowed for, but not required, by Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.[155] [156]


* In addition to Miller, 14 House Democrats and Senator Bernie Sanders, an Independent and self-described "democratic socialist" who caucuses with Democrats, signed the letter above.[157] [158] [159] Of these signatories, all of the 12 who were still in Congress in 2007 (including Sanders) voted to eliminate NLRB secret ballot elections to form unions.[160] [161] [162] [163] [164]


* The Teamsters union, which describes itself as "North America's strongest and most diverse labor union," supports the Employee Free Choice Act. The Teamsters' website states:


Don't believe the lies of Big Business. Corporate America wants you to believe the Employee Free Choice Act will do away with the secret ballot. Not true. What the legislation does is to put that decision back in the hands of workers.[165] [166]


* The text of the Employee Free Choice Act states that when the NLRB "finds that a majority of the employees" in a bargaining unit have signed a card accepting a union, "the Board shall not direct an election but shall certify" the union as the exclusive representative of all the employees in the unit.[167] [168] [169] [170] [171]


* As a U.S. Senator, President Obama voted for the "Employee Free Choice Act," and as President, he told the AFL-CIO union that he would "keep on fighting" for it.[172] [173]


* The Obama administration's 2010 guide to Conducting Local Union Officer Elections states that union election officials should "uphold American democratic traditions by protecting the right" to "vote by secret ballot for officers of your union." It also states that this is among "the most fundamental of union rights."[174] [175]


* Federal law requires that unions elect their officers by secret ballot, except for national and international federations comprised of multiple unions.[176]


* With reference to the Teamsters' internal elections, the Teamsters' constitution uses the phrase "secret ballot" 29 times. For example, "All voting shall be by secret ballot."[177]

 


Decertification


* Once private-sector unions are established at workplaces, federal law requires that they remain indefinitely unless employees vote to remove the union or an employer proves that the majority of employees no longer support the union.[178] [179] [180] [181]


* The landmark union legislation of U.S. history is the National Labor Relations Act of 1935, also known as the Wagner Act.[182] This law gave private-sector employees "the right" to make unions the "exclusive representatives" of all employees in their bargaining units, but it did not contain a provision that allowed employees to revoke this authority.[183] [184] The Labor Management Relations Act of 1947 (a.k.a the Taft-Hartley Act) gave employees this option, which is called decertification.[185] [186]


* To decertify a private-sector union, federal law requires that 30% or more of the employees in a bargaining unit petition the NLRB to revoke the authority of a union to bargain for them. In such cases, federal law requires the NLRB to conduct a secret ballot election, and if at least half of the employees vote to decertify the union, it will no longer represent any of the employees.[187] [188]


* Federal law prohibits decertification elections for one year after a union wins an NLRB-conducted election.[189] Also, the NLRB has enacted rules that:

  • prohibit decertification elections "for a reasonable period of time" after an employer accepts a union without an NLRB election, such as with card check campaigns. The NLRB defines this period as six months to a year after the union and employer have their first bargaining session.[190] [191] [192]
  • prohibit decertification elections for up to three years after a bargaining agreement is approved or renewed, except during a 30-day "window period" near the end of this three-year timespan or the contract's expiration date if the contract is for less than three years.[193] [194] [195] [196]
  • prohibit employers from encouraging or helping employees to file a decertification petition with the NLRB.[197]

* A 2004 nationwide survey of union members conducted by Zogby International found that 93% of union members never voted to establish a union at their current workplace, because the union was established before they were hired.[198]


* In 2001, the NLRB ruled, "We adhere to the established presumption that newly hired employees support the union in the same proportion as the employees they have replaced."[199]

Public Sector Organizing and Decertifying

* At federal government agencies, federal law requires that unions receive a majority of votes in a secret ballot election in order to become the exclusive representative of all employees in a bargaining unit. The same standard applies to decertifying a union.[200]


* Federal law gives the Federal Labor Relations Authority (FLRA) the authority to conduct union certification and decertification elections for federal employees.[201] [202]


* Federal law does not allow for the unionization of the U.S. armed forces or employees of the Federal Bureau of Investigation, Central Intelligence Agency, Secret Service, National Security Agency, Government Accountability Office, and several other agencies.[203] [204]


* Federal law gives the President the authority to exclude federal agencies or subdivisions from laws regarding unionization if they have "as a primary function intelligence, counterintelligence, investigative, or national security work."[205]


* The President can also suspend unionization laws for any federal agency or portion thereof that is physically located outside the U.S. if "the suspension is necessary in the interest of national security."[206]


* Federal law prohibits federal agencies and unions from encouraging or discouraging employees to support unions by rewarding, punishing, or threatening to reward or punish employees. This applies to "hiring, tenure, promotion, or other conditions of employment."[207]


* Federal law prohibits union decertification elections for one year after a certification or decertification election has taken place.[208] [209]


* The FLRA has created the following rules for union election campaigns:

  • Federal agency managers are prohibited from expressing their opinions about unions to employees. When an election campaign in not taking place, managers can express their views about unions as long as there is no "threat of reprisal or force," "promise of benefit," or "coercive conditions."[210] [211]
  • Federal workers are generally allowed to lobby for unions in work and non-work areas during times when they are not supposed to be working.[212]
  • Unions can discipline and expel union members who attempt to decertify a union.[213]
  • Federal workers cannot have a decertification election for three years after a bargaining agreement is approved or renewed, except during a 45-day "window period" near the end of this three-year timespan or the contract's expiration date if the contract is for less than three years.[214] [215]

* Laws concerning unionization and decertification of state and local government employees vary significantly by state. Some of the issues and sources of contention are similar to those with the private sector.[216] [217] [218] [219]

Bargaining Unit Determination

* Per the Encyclopedia of Public Administration and Public Policy:


Unit determination is important, because the composition and size of the unit may affect bargaining success. … Depending on the nature of the bargaining unit, it might be easy or difficult to gain majority support, recognition, or certification as the exclusive bargaining agent for employees.

 

It is not uncommon for employers and unions to differ over the size and nature of the bargaining unit. From the employer's perspective, large units are often preferred. This is because it facilitates cost efficiencies when a single agreement is negotiated with a standard package rather than multiple separate bargaining contracts, each with its own unique provisions. A proliferation of units involves more negotiating sessions, heightens the probability of disruption, and adds complexity of multiple working rules and personnel practices.

 

Employees, by contrast, usually favor small units. Smaller, more homogeneous units maximize opportunity for employee participation, may better reflect the needs and objectives of union members, amplify their voting power, foster greater solidarity, and are easier to organize.[220]

 


Private sector


* Federal law restricts supervisors from being included in private-sector bargaining units (a supervisor may join a union, but not for purpose of collective bargaining). The law also restricts professional employees from being included in bargaining units with nonprofessionals, unless the majority of professionals vote to support the union.[221] [222] [223] [224]


* Within broad legal boundaries, the National Labor Relations Board (NLRB) has the authority to determine the size and scope of bargaining units for the private sector.[225] [226] [227] Per the NLRB:


Generally, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:


1. Any history of collective bargaining.

2. The desires of the employees concerned.

3. The extent to which the employees are organized.[228]


* As unions organize, they sometimes alter the proposed bargaining unit to maximize the chances for obtaining the approval of a majority of employees.[229] [230]


* Federal law prohibits the NLRB from using the extent that a union has gained the approval of employees as the controlling factor in bargaining unit determinations.[231] Congress enacted this requirement in the Taft-Hartley Act of 1947. The legislative record of the act states that this requirement:


strikes at a practice of the Board by which it has set up as units appropriate for bargaining whatever group or groups the petitioning union has organized at the time. Sometimes, but not always, the Board pretends to find reasons other than the extent to which the employees have organized as ground for holding such units to be appropriate…. While the Board may take into consideration the extent to which employees have organized, this evidence should have little weight, and … is not to be controlling.[232]


* In 2011, the United Food and Commercial Workers Union attempted to unionize the salespeople of a Macy's department store in Saugus, Massachusetts, but the employees voted against the union. The union then altered the proposed bargaining unit to include only the salespeople in the cosmetics and fragrances departments. In 2014, the NLRB ruled 3-1 that this bargaining unit was appropriate, and the cosmetics and fragrances salespeople then voted 23-18 to unionize. All of the NLRB members who ruled in this case were appointed by President Obama. The three who formed the majority were Democrats, and the one who dissented was a Republican.[233] [234] [235] [236] [237]


* The NLRB has approved bargaining units that span multiple locations of the same employer and separate employers. The NLRB has also approved units with as few as two people. From 2001-2010, the median bargaining unit size approved by the NLRB was 23-26 employees.[238] [239] [240] [241] [242]


* Small bargaining units are sometimes called "micro-unions" or "micro-units."[243]


* To prevent "disruptions in the delivery of health care services," federal regulations restrict the number and types of bargaining units that can be formed in acute care hospitals.[244] [245]

 


Government sector


* Within broad legal boundaries, the Federal Labor Relations Authority (FLRA) has the authority to determine the size and scope of bargaining units for federal employees "on a case-by-case basis."[246] [247]


* Under federal law, bargaining unit determinations must ensure that the unit "will promote effective dealings with, and efficiency of the operations of the [federal] agency involved."[248] No similar provision of the law exists for the private sector.[249]


* The FLRA "has a preference for preventing unit fragmentation" but has approved bargaining units with as few as four members.[250]


* Federal law prohibits the FLRA from using the extent of union support as the sole factor in bargaining unit determinations.[251]


* Federal law generally restricts supervisors from being included in federal employee bargaining units. It also restricts professional employees from being included in bargaining units with nonprofessionals, unless the majority of professionals vote to support the union.[252] [253] [254]


* For state and local government employees, Public Employees Relations Boards (PERBs) often make bargaining unit determinations.[255] Some of the issues and sources of contention are similar to those in the private sector.[256]

Compulsory Unionism

Forced Employment


* In the 1908 Supreme Court case of Adair v. United States, the Justices ruled (6-2) that a law forcing employers to retain union employees was an "invasion of the personal liberty, as well as of the right of property, guaranteed by" the U.S. Constitution. The ruling stated that:

 

it is not within the functions of government -- at least in the absence of contract between the parties -- to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another.


In all such particulars, the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.[257]


* Under current federal law that was established in the 1935 Wagner Act, it is against the law for private-sector employers to fire employees for being members or advocates of unions.[258] [259] [260]


* In the 1937 Supreme Court case of National Labor Relations Board v. Jones and Laughlin Steel, the Justices ruled (5-4) that the above-cited provision of the Wagner Act does not violate the Constitutional rights of employers because it:

 

goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.

 

Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority.[261]

 


Forced Representation


* Under current federal law that was established in the 1935 Wagner Act, private sector unions approved by a majority of employees become "the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment…."[262] [263]


* In the 1937 Supreme Court case of National Labor Relations Board v. Jones and Laughlin Steel, the Justices ruled (5-4) that the Wagner Act did not violate the U.S. Constitution or its Fifth Amendment right that no person shall be "deprived of life, liberty, or property, without due process of law." With regard to this, the Court ruled that the exclusive representation provision of the Wagner Act did not deprive individual employees or employers of the freedom to bargain with each other. The majority wrote that the exclusive representation provision:

 

was designed only to prevent collective bargaining with any one purporting to represent employees' other than the representative they had selected … but not as precluding such individual contracts as the company might elect to make directly with individual employees.


The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer from refusing to make a collective contract and hiring individuals on whatever terms the employer may by unilateral action determine. [Internal quote marks omitted] [264] [265] [266]


* Between 1937 and 1943, the U.S. President who signed the Wagner Act into law, Franklin Delano Roosevelt (D), appointed seven of the nine Justices on the Supreme Court.[267] [268] [269]


* In the 1944 Supreme Court case of J.I. Case Co. v. National Labor Relations Board, the Justices ruled (8-1) that even though "some employees may lose" from a collective bargaining agreement, federal labor law does not have to "respect" their "freedom" to negotiate "better terms" with their employers. Per the ruling:

 

Increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices.


The workman is free, if he values his own bargaining position more than that of the group, to vote against representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result.


Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.[270]


* This ruling gave unions a monopoly over the labor supply of unionized bargaining units. In these workplaces, individual workers and employers are prohibited from making employment agreements with each other. This differs from Western Europe, where employers are generally free to bargain with different employees.[271] [272] [273]


* As of September 2014, the National Right to Work Legal Defense Foundation is unaware of any private-sector workplace where individual workers are free to bargain for themselves once a union is established by an NLRB election, card check, or similar means.[274]


* Under federal law, all federal government employees in bargaining units where a majority of employees voted for a union must be represented by that union.[275] [276] [277]


* Laws concerning forced representation of state and local government employees vary by state.[278] [279]


* Per a 2013 U.S. Census Bureau survey, 1.5 million or 9.4% of people whose main jobs were covered by union contracts were not members of unions.[280] [281] This rate varied from 5.4% for construction workers to 23.1% for financial workers:

 

[282]


* By a majority vote, groups of employees can revoke the authority of a union to represent them. For details, see the section on Decertification.



Forced Dues


* Under current federal law that was established in the 1947 Taft-Hartley Act, private-sector employees have "the right to refrain from any or all" union-related "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…."[283] [284] [285]


* In the 1963 Supreme Court case of National Labor Relations Board v. General Motors Corporation, the Justices ruled (8-0) that the above provision of the law means employees can be forced to be dues-paying members of unions, but employees cannot be forced to be full union members who are subject to all union rules.[286] [287] [288]


* Per the National Labor Relations Board (NLRB), the above provision of the law:


permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, that requires employees to make certain payments to the union in order to retain their jobs.[289] [290]


* Such payments consist of dues that unions use for "representational activities (such as collective bargaining, contract administration, and grievance adjustment)." Employees can object to paying a portion of union dues used for other purposes, such as political activities (for more detail, see the section on Politics and Activism).[291] [292]


* Under various federal court rulings, when private-sector workers opt to pay only the portion of dues used for representational activities, unions generally can exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[293] [294] [295] [296] [297] [298] [299]


* Under current federal law that was established in the 1947 Taft-Hartley Act, individual states can prohibit contracts that force employees to pay union dues.[300] [301] States that have passed such laws are called "right-to-work" states, and as of 2014, they include the following 24 states:

 

Alabama  Kansas  Oklahoma
Arizona  Louisiana  South Carolina
Arkansas  Michigan  South Dakota
Florida  Mississippi  Tennessee
Georgia  Nebraska  Texas
Idaho  Nevada  Utah
Indiana  North Carolina  Virginia
Iowa  North Dakota  Wyoming

[302] [303]


* In right-to-work states, when employees opt to not pay union dues, unions generally can exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[304] [305]


* In non-right-to-work states, unions typically insist that their collective bargaining contracts contain a "union security" provision that requires all employees in the bargaining unit to pay union dues.[306] [307]


* In the 2012 case of Erie Brush v. National Labor Relations Board, a Chicago company stopped negotiating with a newly organized union that insisted on a union security provision that the company opposed. In this case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously ruled that the NLRB could not force the company to continue negotiating with the union after they had reached an impasse on this matter.[308]


* Under federal law, any private-sector worker "who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections" to joining or supporting unions does not have to pay dues to the union, but he or she must make equivalent payments to charities specified in union contracts.[309] [310]


* Federal law prohibits contracts that force federal workers to pay union dues.[311] [312]


* Laws concerning forced dues from state and local government employees vary by state.[313] [314]


* In the 1977 Supreme Court case of Abood v. Detroit Board of Education, the Justices ruled that states can force government employees to pay union dues used for representational activities, but employees can object to paying a portion of dues used for other purposes, such as political activities.[315] [316] [317]


* In the 2014 Supreme Court case of Harris v. Quinn, the majority (5-4) declared that the forced-dues requirement of the Abood ruling was "questionable on several grounds" and that a "critical pillar" of it rested upon "an unsupported empirical assumption…." The majority also wrote that the Abood Court "seriously erred" in their interpretation of earlier Supreme Court rulings and "did not foresee the practical problems that would face" government workers who do not want to support union political activities. However, the case before the Court differed from Abood, and the Justices did not overrule it.[318]


* The 2014 Harris v. Quinn case involved a Medicaid program that provides states with federal money to compensate people who "provide in-home services to individuals whose conditions would otherwise require institutionalization." Many of the people who provide this care are relatives of the people who receive the care, such as parents who care for disabled children. In Harris v. Quinn, the Supreme Court ruled (5-4) that states cannot deem these caregivers to be government employees in order to force them to pay union dues.[319] [320]


* When federal, state or local government workers opt not to pay any union dues or only the portion used for representation, unions can sometimes exclude them from voting on contracts that control the terms of their employment, such as wages, hours, vacations, strikes, health insurance, and safety practices.[321] [322] [323] [324] [325]



Deauthorization


* Under federal law, the majority of private-sector workers in a bargaining unit under a contract that mandates the payment of union dues can vote to rescind that aspect of the contract. This is called a "deauthorization" election.[326] [327]


* Deauthorization elections differ from decertification elections, which involve workers voting to rescind the authority of a union to represent them. In contrast, after a deauthorization election, the union still represents the workers, but the workers are not forced to pay union dues.[328]


* Under federal law, private-sector workers are prohibited from holding deauthorization or decertification elections for one year after a union wins an NLRB-conducted election.[329] However, deauthorization elections can be held more easily than decertification elections, because the NLRB has enacted rules that prohibit decertification elections for up to three years after a bargaining agreement is approved or renewed, except during a 30-day "window period" near the end of this three-year timespan or the contract's expiration date if the contract is for less than three years.[330] These rules do not apply to deauthorization elections.[331]


* To hold a private-sector deauthorization election, federal law requires that 30% or more of the employees in a bargaining unit petition the NLRB to revoke the authority of a union to forcibly collect dues. In such cases, the NLRB must conduct a secret ballot election, and if a majority of workers vote to deauthorize, they will no longer be forced to pay union dues.[332] [333]


* Unlike representation and decertification elections, which are determined by a majority of votes cast in the election, a union will not be deauthorized unless a majority of all workers in the bargaining unit vote to deauthorize it.[334]


* There is no basis for federal employees or employees in right-to-work states to hold deauthorization elections, because these workers cannot be forced to pay union dues in the first place.[335] [336]


* Laws concerning deauthorization elections for state and local government employees vary by state.[337] [338] [339]

Bargaining and Negotiation

Private sector


* Under current federal law that was established in the 1935 Wagner Act, it is against the law for private-sector employers "to refuse to bargain collectively" with unions approved by a majority of employees. The 1947 Taft-Hartley Act imposed the same requirement on unions, creating a "mutual obligation" for unions and employers "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment…."[340] [341] [342] [343] [344]


* Under current federal law that was established in the 1947 Taft-Hartley Act, the obligation to bargain collectively "does not compel either party to agree to a proposal or require the making of a concession…."[345] [346]


* Per West's Encyclopedia of American Law, "It is a fundamental part of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government."[347]


* Federal law does not require employers and unions to continue negotiating in the face of an impasse. In the 2012 case of Erie Brush v. National Labor Relations Board, a Chicago company stopped negotiating with a newly organized union that insisted on a union security provision that the company opposed. In this case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia unanimously ruled that the NLRB could not force the company to keep negotiating with the union after they had reached an impasse on this matter.[348] [349]


* Under rules established by the National Labor Relations Board, most terms of private-sector collective bargaining contracts remain in force even after the contracts expire. This includes wages, hours, employee savings accounts, dues-checkoff provisions (which require employers to deduct union dues from employees' paychecks and submit them to the union), and "other terms and conditions of employment." Some exceptions to this rule are no-strike clauses, arbitration agreements, and management-rights provisions.[350] [351] [352]


* In 2007, 227 Democrats and 7 Republicans in the U.S. House of Representatives cosponsored a bill called "Employee Free Choice Act."[353] This bill would have given an "arbitration board" the authority to dictate the terms of collective bargaining agreements for two years in cases where private-sector employers and newly established unions don't come to an agreement after 120 days of bargaining.[354] This arbitration board would be under the authority of a single person who is appointed by the President with the consent of the Senate.[355] [356]


* The bill passed the U.S. House of Representatives with 93% of Democrats voting for it and 99% of Republicans voting against it.[357]


* Senate rules allow for a "filibuster," in which a vote to pass certain bills can be blocked unless 60 of the Senate's 100 members agree to let it take place.[358] [359] The bill failed to pass a filibuster with 100% of Democrats voting for it and 98% of Republicans voting against it.[360] [361]



Public sector


* Federal law requires that federal agencies and unions negotiate in "good faith" with each other.[362] In cases where they don't reach an agreement, a federal panel comprised of people appointed by the President "may take whatever action it deems necessary to resolve the dispute, including imposition of contract terms through a final action." The merits of these decisions "may not be appealed to any court."[363] [364]


* Per the Congressional Research Service:


In the federal government, most employees do not bargain over wages. Salaried employees generally receive an annual pay adjustment and a locality pay adjustment, effective each January. Federal employees who are paid by the hour usually receive pay adjustments equal to those received by salaried workers in the same locality.[365]


* State and local laws concerning collective bargaining negotiations for public-sector unions vary significantly.[366] [367]


* Some states and localities have enacted "binding arbitration" laws that give selected panels, organizations, or individuals the authority to dictate the terms of some union contracts. Such contracts often involve public safety workers, such as police and firefighters, but sometimes teachers and other government employees.[368] [369] [370] [371]


* Some binding arbitration laws have been repealed by voters or struck down by courts on grounds that these laws confer authority to spend taxpayer money to arbitrators who are not accountable to the voters.[372] [373] [374] [375]

Strikes, Boycotts, Picketing, and Lockouts

* When unions and employers have disputes over the terms of a contract, they sometimes attempt to pressure each other through strikes, boycotts, picketing, and lockouts. Per West's Encyclopedia of American Law:

  • A strike is "a concerted refusal of employees to perform work that they have been assigned, in order to force the employer to grant concessions that the employees have demanded."
  • A boycott "is any type of union action that seeks to reduce or stop public patronage of a business."
  • Picketing "consists of posting one or more union members at the site of a strike or boycott, in order to interfere with a particular employer's business or to influence the public against patronizing that employer."
  • A lockout "is an employer's refusal to admit employees to the workplace, in order to gain a concession from them."[376]

Private sector


* Under current federal law that was established in the 1935 Wagner Act, private-sector employees have a "right to strike" under certain conditions.[377] [378] [379] [380] [381]


* In unionized bargaining units, unions can unilaterally determine who is allowed to participate in strike votes.[382] For instance, the Teamsters union allows all workers who will affected by a strike to vote on it,[383] while the Communications Workers of America only allows union members to vote.[384]


* In November 2013, U.S. Senator Orrin Hatch (R-UT) sponsored a bill that would give "every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization" the right to participate in strike votes. As of October 2014, the bill has been cosponsored by 28 other Republicans, and the Senate has not taken action on it.[385] [386] [387]


* Under various U.S. Supreme Court rulings pertaining to the choices of individuals to work during a strike:

  • When unions strike, employees who are not full union members are free to work and cannot be fined by unions for doing so.
  • When unions strike, they can impose fines on members who work.
  • Unions cannot prohibit members from resigning during strikes.
  • If union members resign during a strike, they are free to work and cannot be fined by unions, as long they resign before they begin working.[388] [389]

* In the 1939 Supreme Court case of National Labor Relations Board v. Fansteel Metallurgical Corp., the Justices ruled (6-2) that employers are free to fire employees who engage in unlawful actions while they are striking.[390] [391] [392] Per the NLRB, some examples of such include:

  • "A strike that violates a no-strike provision of a contract" between a union and employer.
  • "Strikers physically blocking persons from entering or leaving a struck plant."
  • "Strikers threatening violence against nonstriking employees."[393] [394]

* The National Labor Relations Board (NLRB) and federal courts have distinguished between two main types of legal strikes:

  • Economic strikes, in which employees strike for reasons such as wages, hours, or vacation time.
  • Unfair labor practice strikes, in which employees strike for reasons such as employer discrimination against union members or failure to bargain in good faith.[395] [396]

* In the 1938 Supreme Court case of National Labor Relations Board v. Mackay Radio & Telegraph Co., the Justices ruled (7-0) that:

  • employers cannot fire employees for striking.
  • if a strike is for economic reasons, and the employer hires replacement workers to perform the jobs of the strikers, the government cannot force the employer to fire the replacement workers if the strikers want to return to work. Thus, the job positions formerly held by the strikers become filled by "permanent replacement" workers.
  • if the replacement workers leave or new positions become available, the government can force the employer to give these job openings to former strikers.
  • if a strike is about an unfair labor practice, the government can force the employer to fire the replacement workers and give these jobs to strikers who want to return to work.[397] [398] [399]

* Under decisions of the NLRB and federal appeals courts, if a strike concerns both an economic reason and an unfair labor practice, the government can force the employer to fire the replacement workers and give the jobs to strikers who want to return to work.[400]


* The website of the Teamsters Union states that strikes over unfair labor practices are "very rare" and "most strikes are called for economic reasons—to improve wages, health benefits, retirement benefits, etc."[401]


* In a 2012 article published by Labor Notes (a magazine for union activists[402]), union lawyer Robert M. Schwartz advises unions preparing to strike that they should "precipitate" unfair labor practices by using certain "tactics." Per the article:

 

Positioning a walkout as an unfair labor practice [ULP] strike is one of the key tasks for any union on the verge of a labor battle.


Employers often argue that strikes should be classified as economic because union officials took purposeful steps to make them look like ULP strikes. The NLRB often rejects such claims.


If the union lays groundwork that will enable it to prove its strike was either totally or partially caused by the employer's unfair labor practices, the employer may be motivated to hold back from hiring "permanent" replacements because of the risk of a huge back-pay award [ordered by the NLRB].[403] [404] [405]


* Under federal law, private-sector employees have a "right to picket" under certain conditions.[406] [407] [408] [409]


* The central objective of picketing is to create bargaining leverage by financially harming a business. This is typically accomplished by coercing customers and employees to stay away from a business through nonviolent confrontation. To do this, picketers create a "symbolic barrier" between themselves and anyone who might enter a business.[410] [411]

 

[412]


* Under federal law, private-sector employers cannot fire employees for picketing their business unless the picketers engage in illegal behavior, such as acts of violence or physically blocking people from entering an establishment.[413] [414]


* Federal law prohibits unions from engaging in or encouraging picketing, strikes, or boycotts against employers with whom they do not directly have a labor dispute. These are called "secondary boycotts," and examples of such include:

  • "Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union."
  • "Asking the employees of a plumbing contractor not to work on connecting up air-conditioning equipment manufactured by a nonunion employer whom the union is attempting to organize."
  • "Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union."[415] [416] [417]

* The law against secondary boycotts does not prohibit unions from distributing literature that encourages people not to patronize employers with whom they do not directly have a labor dispute.[418]



Public sector


* Federal law prohibits federal employee unions from picketing if it "interferes with an agency's operations…."[419]


* Federal law prohibits federal employee unions from:

  • striking or participating in a work stoppage or slowdown.
  • condoning strikes and similar activities "by failing to take action to prevent or stop" them.
  • taking any actions "for the purpose of hindering or impeding the member's work performance or productivity…."[420]

* In 1981, members of the Professional Air Traffic Controllers' Organization union went on strike in violation of federal law. As a result, the employees were fired and the union decertified.[421] [422]


* Some state and local governments allow certain public employees to strike in certain circumstances.[423] [424] [425]


* Per a 1988 reference work entitled Handbook on Human Service Administration:

 

Strikes are almost always illegal for public employees, although they have increased in number significantly over the past two decades. Most public employee strikes are by local government employees, and the one professional group of employees most likely to strike is teachers.


As in the laws governing federal employees, often there are very severe penalties in state laws for striking workers and labor organizations, but these penalties often are not imposed.[426] [427]


* In unionized public-sector bargaining units, unions generally can determine who is allowed to participate in strike votes.[428] [429] [430]

Economic Effects

* Per a 2005 paper in the Journal of Labor Research:


The economic case for and against unions to a large degree depends on the extent to which markets (in the private sector) and organizations (in the public sector) operate efficiently or cost effectively.[431]


* Some examples of how unions may improve efficiency or cost effectiveness:

  • Conducting apprenticeship and training programs that make employees more productive.[432]
  • Boosting worker morale by increasing employee compensation and giving them a greater voice in company operations.[433] [434]
  • Protecting government employees from politically motivated firings.[435]
  • Reducing strife between employers and employees.[436]

* Some examples of how unions may harm efficiency or cost effectiveness:

  • Enacting work rules that impede the use of new technologies and confine workers to narrow tasks that hinder their productivity.[437] [438] [439]
  • Increasing employee compensation to levels that induce employers to outsource jobs and replace workers with machinery.[440] [441] [442]
  • Prohibiting incentives for individual achievement and protecting the jobs of workers who are poor performers or safety threats.[443] [444] [445] [446]
  • Increasing strife between employers and employees.[447] [448]

Important Notes on the Forthcoming Data and Studies


Economic differences between union and nonunion situations may be caused in part or whole by factors other than unionization, such as sector and industry dynamics,[449] [450] [451] [452] geographic disparities,[453] employer circumstances,[454] and worker characteristics.[455] [456] [457] Academics conducting studies often attempt to control for such variables,[458] but they cannot objectively rule out the possibility that other factors are at play. This is known as "omitted variable bias."[459] [460] [461] [462] [463]


The potential for omitted variable bias can be reduced by analyzing time-series data surrounding changes in unionization. For example, a study may track certain workers' compensation for several years before and after they unionize. This can limit the impact of many variables,[464] [465] but such studies also have shortcomings.[466]


In order to curb the methodological trickery that besets public policy debates, Just Facts adheres to Standards of Credibility that call for the presentation of comprehensive "data in its rawest comprehensible form." Time-series data that meet these criteria would be ideal for the study of union economic effects, but such data is rare.[467] If you are aware of well-documented data of this nature, please contact us.


Unless otherwise indicated, the caveats above apply to the data and studies cited below.



Union Workers


* In 2013, the median weekly earnings of full-time union workers aged 25 years and older was 21% higher than that of nonunion workers. Across various age and ethnic groups, this wage differential ranged from as low as -5% for white men aged 65 years and older to as high as 57% for Hispanic women aged 16 years and older.[468] These figures do not account for fringe benefits or the costs of union dues.[469]


* In 2010, employers spent an average of $14.49 on benefits for every hour worked by union employees and $7.43 on benefits for every hour worked by non-union employees (excluding certain benefits not captured in this data [470]).[471]


* Most studies of union wage effects have found that unions increased the average wages of union workers.[472] A 2004 paper in the Journal of Labor Research summarizing the results of 100+ studies on union wage effects from 1967 into the 2000s found that unions increased the average wage of union workers by about 16%.[473]


* Unions generally have been able to raise union workers' compensation above market rates because exclusive representation laws give unions legal monopolies over employer labor supplies.[474] [475] [476] [477] The tradeoff for union workers is that this can cause their employers to become less competitive, which decreases the number of union jobs. Per a 2004 paper in the Journal of Labor Research:


In the 1970s and early 1980s, the [union] wage gap in the private sector rose while union density fell, as predicted in the standard textbook model of how employment responds to wages where the union has monopoly power over labor supply. … The fact that unions pushed for, and got, an increasing wage premium over this period, implies that they were willing to sustain membership losses to maintain real wages, or that unions were simply unaware of the consequences of their actions.[478] [479] [480] [481]


* To compensate for reduced competitiveness, unions sometimes engage in tactics that harm non-union competitors unless they unionize. Per an article in Labor Research Review by union organizer Joe Crump:

 

But when a nonunion competitor is beating your brains out and the union employers are looking for concessions or, worse, going out of business, then I don't believe we have the luxury of sitting around and hoping that employees trapped in a "union free environment" will come knocking on our door looking for a solution to their problems.


If organizing is the lifeblood of the labor movement, then we have to create our own reality, by making our own breaks. And that means focusing on employers and making them pay for operating nonunion.[482] [483] [484]


* Unionized employees who are financially harmed by unions tend to be:

  • High-performing workers, who are penalized by union contracts that prohibit increased individual compensation for above-average performance.[485]
  • Newer workers, who are penalized by union policies that compensate workers for seniority and require that newer workers are the first to be dismissed during layoffs. [486] [487] [488] [489]
  • Workers who are unpopular with union leadership, as detailed below.

* Under previous federal law established in the 1935 Wagner Act, unions were permitted to negotiate "closed-shop" contracts in which workers could be barred from working in a bargaining unit represented by a union unless the union accepted them as members.[490] [491]


* Closed-shop contracts enabled unions to exclude anyone from membership for any reason, thus allowing them to stop certain people from working in certain bargaining units and trades that were highly unionized.[492] [493]


* Some examples of people who were barred from employment though closed-shop agreements included racial minorities, a worker who testified about a crime committed by a union member, a radio commentator who refused to make a financial contribution to a union cause, and a union member who ran for a union leadership position against an incumbent union official.[494] [495] [496] [497]


* The 1947 Taft-Hartley Act banned closed shops by requiring that union membership be "available" to all employees and could not be "denied or terminated for reasons other than the failure of the employee" to pay union dues and initiation fees.[498] [499] [500] This law still exists.[501]


* In the construction, building, and maritime industries, federal law allows for contracts that enable unions to determine which workers obtain work by using their own "non-discriminatory standards and procedures."[502] [503] [504] Per the 2014 textbook Labor Relations in the Public Sector:


The closed shop approach is illegal in both public and private sectors under the Taft-Hartley amendments but continues to exist de facto in a few settings, principally though "hiring halls" that vet job applicants.[505] [506]



Consumers


* U.S. federal law provides unions with monopolies over employer labor supplies, allowing unions to fix labor prices and exclude competition.[507] [508] [509]


* Monopolies, price fixing, and the exclusion of competition generally lead to higher consumer prices.[510] [511] [512]


* Higher consumer prices generally reduce people's standards of living.[513] [514]


* Per the college textbook Survey of Economics:


Nominal income does not measure your real purchasing power. Finding out whether you are better or worse off over time requires converting nominal income to real income. … Real income measures the amount of goods and services that can be purchased with one's nominal income.[515]


* In 2012, the average nominal income in private-sector non-right-to-work states was 9.6% higher than in right-to-work states, but because the average prices of goods and services were higher in non-right-to-work states, the average real income was 1% higher in right-to work states:

 

[516] [517]



Taxpayers


* In 2013, government employees comprised 16% of all workers and 50% of all union members in the U.S.[518]


* In the public sector, 35% of all employees were members of unions as compared to 7% in the private sector.[519]


* Private-sector businesses must compete for customers, and this hinders the ability of unions to organize and raise wages.[520] [521] Such competition is lessened in the public sector, because governments often have monopolies over certain services, such as law enforcement and public schools. Per the U.S. Supreme Court's unanimous decision in Abood v. Detroit Board of Education:


A public employer, unlike his private counterpart, is not guided by the profit motive and constrained by the normal operation of the market. Municipal services are typically not priced, and where they are they tend to be regarded as in some sense "essential" and therefore are often price-inelastic [i.e., the demand for the service is not affected by its price[522]].

 

Although a public employer, like a private one, will wish to keep costs down, he lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases. A public-sector union is correspondingly less concerned that high prices due to costly wage demands will decrease output and hence employment.[523]


* Governments are subject to certain types of competition, because people and businesses sometimes migrate to locations where governments provide better value for their tax dollars, and because voters sometimes remove politicians for reasons such as increasing taxes and government spending.[524] [525]


* In 2000, the journal Research in Labor Economics published a study of wages for people who took and left jobs as unionized full-time U.S. Postal Service employees. Using three different datasets, the researchers found that private-sector workers who took jobs with the Postal Service received average wage increases ranging from 29% to 43%, and those who left the Postal Service for private-sector jobs saw average wage decreases ranging from 25% to 33%.[526] The study did not account for the higher fringe benefits of Postal Service jobs. In 2014, 89% of Postal Service career employees were represented by unions as compared to 8% of private-sector employees.[527] [528]


* In 2012, the U.S. Congressional Budget Office published a study comparing the hourly compensation of full-time, full-year workers in the private sector to non-postal, civilian, federal workers. These federal workers had a union membership rate of about 57% as compared to 7% in the private sector.[529] [530] The study accounted for education, occupation, work experience, geographic location, employer size, and various demographic characteristics. The researchers found that federal workers received an average of 16% more compensation than comparable private-sector workers. Across various levels of education, this differential ranged from a low of –18% for workers with a professional degree or doctorate to a high of 36% for workers with a high school diploma or less:

 

Federal Employee Compensation Premiums

Relative to Private Sector

   Wages  Benefits  Total
High School Diploma or Less  21%  72%  36%
Some College  15%  71%  32%
Bachelor's Degree  2%  46%  15%
Master's Degree  –5%  36%  8%
Professional Degreeor Doctorate  –23%  2%  –18%
All Levels of Education  2%  48%  16%

[531]


* Per the same study:


If CBO had not structured the analysis so as to compare workers with similar observable traits, the difference in average wages between the two sectors would have been much larger.

 

Comparing federal and private-sector employees with similar educational attainment was the most important element, for two reasons: Highly educated workers tend to earn much higher wages than less educated workers, and federal employees have more education, on average, than employees in the private sector.

 

People's compensation is also affected by many characteristics that are not easy to observe or measure, such as their natural ability, personal motivation, and effort. The degree to which federal and private-sector employees may differ with regard to those characteristics is much harder to quantify, and no adjustments were made for those attributes in this analysis.[532]


* During December 2011, state and local governments spent an average of 36% more for employee wages and benefits per contract hour worked by union employees than nonunion employees (excluding certain benefits not captured in this data[533]). Across various occupations, this differential ranged from 26% for sales and office workers to 61% for service workers:

 

State and Local Government Costs per Employee Contract Hour

Occupation  Union  Non-union  Difference
All workers  $31.24  $23.01  36%
Management, professional,

and related

 $38.44  $29.64  30%
Service  $22.84  $14.23  61%
Sales and office  $19.64  $15.54  26%
Natural resources, and

construction

 $25.29  $18.06  40%
Production, transportation,

and material moving

 $21.84  $15.34  42%

[534] [535]


* During September 2014, state and local governments spent an average of 44% more on employee compensation per contract hour worked than private-sector employers (excluding certain benefits not captured in this data [536]). Contract hours generally do not include the added time that professional employees often work "beyond the established work schedule of the employer due to the requirements of their jobs" and the added time that teachers often work beyond their established work schedules for "lesson preparation, test construction and grading, providing additional help to students, and other nonclassroom activities." In 2013, 40% of state and local government employees were represented by unions, as compared to 8% in the private sector.[537]

 

Employer Costs per Employee Contract Hour

Employees  Wages & Salaries  Benefits  Total Compensation
Private Sector  $21.18  $9.14  $30.32
State & Local

Government

 $27.89  $15.67  $43.56
Difference  32%  71%  44%

[538] [539]


* As of January 2015, Just Facts is unaware of any comprehensive and credible comparison of compensation for private-sector workers to state and local government workers that uses time-series data or accounts for the education, occupation, and work experience of employees.[540]


* Below are some examples from news reports about compensation for unionized government workers:

  • "Records released Friday by the agency showed Port Authority police took home $41.4 million in overtime, with two officers making far more in overtime than the $107,900 they earn in base pay. Both were paid more than $256,000 this year. … [O]vertime pay is factored into New York state retirement benefits, inflating the pensions Port Authority police officers and other employees receive."
    - Star-Ledger (NJ), 2011[541]
  • In "Newport Beach, California … most of the fulltime lifeguards in this city earn well over $100,000 in total compensation a year…. Adding in pension contributions, medical benefits, life insurance and other pay, two battalion chiefs earned more than $200,000 in 2010, while the lowest-paid officer made more than $98,000. … Newport Beach's lifeguards can retire at 50 with 90 percent of their salary with 30 years of service…."
    - Associated Press, 2011[542]
  • "Richard Petrucelli, of East Boston, was paid a total of $288,562 in 2003 for his work as an electrician, part of an unusually high outlay of overtime pay that year for turnpike employees, including electricians and toll collectors."
    - Boston Globe, 2004.[543]
  • "In Yonkers, more than 100 retired police officers and firefighters are collecting pensions greater than their pay when they were working. One of the youngest, Hugo Tassone, retired at 44 with a base pay of about $74,000 a year. His pension is now $101,333 a year. … According to pension data collected by The New York Times from the city and state, about 3,700 retired public workers in New York are now getting pensions of more than $100,000 a year, exempt from state and local taxes."
    - New York Times, 2010[544]
  • "Auditors say the New Jersey Turnpike Authority wasted $43 million on unneeded perks and bonuses. In one case, an employee with a base salary of $73,469 earned $321,985 when all payouts and bonuses were included."
    - Fox 5 New York, 2010[545] [546]
  • "Under the current contract, police and fire employees hired before June 2010 can retire at 50 with up to 90 percent of their final year's salary. That means a fire department employee with 30 years of service who retires at age 50, at the department's 2009 average salary of $103,877, would receive a yearly pension of about $93,500. If that retiree lived to age 80, his or her lifetime pension would total $2.8 million."
    - Peninsula Press (CA), 2011[547]
  • "Jean Keller earned $269,810 last year working as a nurse at a men's prison on California's central coast by tripling her regular pay with overtime hours."
    - Bloomberg News, 2011
  • "Madison's highest paid city government employee last year wasn't the mayor. It wasn't the police chief. It wasn't even the head of Metro Transit. It was bus driver John E. Nelson. Nelson earned $159,258 in 2009, including $109,892 in overtime and other pay."
    - Wisconsin State Journal, 2010[548] 
  • Dennis Gannon's $158,000/year pension is "a prime example of how government officials and labor leaders have manipulated city pension funds at the expense of union workers and taxpayers. Like other labor leaders, he was able to take a long leave from a city job to work for a union and then receive a city pension based on a high union salary."
    - Chicago Tribune, 2011[549]
  • "Over the last three years, Niagara County taxpayers paid more than $1.25 million for face peels, breast implants, liposuction and other elective cosmetic surgery for county employees."
    - Buffalo News, 2002[550]

Membership Rates

Overall

 

* From 1897 to 1953, the portion workers who were members of U.S. unions rose from 3.6% to a high of 32.5%. In 2013, 11.3% of U.S. workers were members of unions:

 

[551]



Private Sector


* From 1929 to 1953, the portion of private-sector workers who were members of U.S. unions rose from 12.4% to a high of 35.7%. In 2013, 6.7% of private U.S. workers were members of unions:

 

[552]



Public Sector



* From 1929 to 1976, the portion of government employees who were members of U.S. unions rose from 8.2% to a high of 40.2%. In 2013, about 35.3% of government employees in the U.S. were members of unions:

 

[553]



Industries


* In 2013, the portion of workers in the U.S. who were members of unions in various industries/sectors ranged from 1.0% for agriculture, forestry, fishing and hunting to 40.8% for local government:

 

[554]


* Excluding members of the armed forces and other federal employees who are not eligible for unionization,[555] [556] 57% of non-postal federal employees were represented by unions in 2013.[557]


* In 2014, 89% of U.S. Postal Service career employees were represented by unions.[558]


* In 2013, the composition of union membership in the U.S. was as follows:

 

[559]

Politics and Activism

Candidates


* From 1989 to 2014, the 15 unions that made the most political donations reported to the Federal Election Commission (FEC) gave 76% of their money to Democrats and 2% to Republicans. They gave the rest of the money to outside groups like political action committees.

 

Union  Democrats  Republicans
National Education Association  46%  3%
American Federation of State,

County & Municipal Employees

 76%  0%
International Brotherhood of

Electrical Workers

 90%  1%
Carpenters & Joiners Union  65%  8%
United Auto Workers  72%  0%
Laborers Union  81%  7%
Service Employees International

Union

 83%  2%
American Federation of Teachers  89%  0%
Communications Workers of

America

 85%  0%
AFL-CIO  52%  2%
United Food & Commercial

Workers Union

 81%  0%
Teamsters Union  92%  5%
Machinists & Aerospace Workers

Union

 98%  1%
National Association of Letter

Carriers

 84%  9%
Plumbers & Pipefitters Union  79%  4%
Total  76%  2%

[560]


* An investigation conducted in 2001 by the Associated Press found that:


unions have spent millions on TV ads and voter guides portraying the [Democratic] party favorably, and worked neighborhoods to get voters to the polls. But they routinely report zero political expenses to the IRS, a review of union documents shows.[561]


* An investigation conducted in 2010 by the Wall Street Journal found that:


Organized labor spends about four times as much on politics and lobbying as generally thought, according to a Wall Street Journal analysis, a finding that shines a light on an aspect of labor's political activity that has often been overlooked.

 

Previous estimates have focused on labor unions' filings with federal election officials, which chronicle contributions made directly to federal candidates and union spending in support of candidates for Congress and the White House.

 

But unions spend far more money on a wider range of political activities, including supporting state and local candidates and deploying what has long been seen as the unions' most potent political weapon: persuading members to vote as unions want them to.[562] [563]


* In 2009, Andy Stern, president of the two-million-member Service Employees International Union (SEIU), stated, "We spent a fortune to elect Barack Obama — $60.7 million to be exact — and we're proud of it."[564] During the 2008 election cycle, the SEIU reported to the FEC a total of $39.0 million in contributions to all federal candidates, parties, political action committees, and related organizations, or 64% of the figure specified by Stern for the election of Obama.[565]


* In response to a FAQ that reads, "What happens to the dues money that is paid to the Union?" the website of the United Food and Commercial Workers Union Local 23 in Canonsburg, PA makes no mention of political activities.[566] From 1990-2014, the United Food and Commercial Workers Union made $31,073,685 in political donations reported to the FEC, 99% of which went to Democrats.[567]



Issues


* Beyond direct contributions to political candidates and parties, unions have also promoted certain causes and agendas, such as the following:

  • The International Secretary-Treasurer of the SEIU, Eliseo Medina, "leads the union's efforts to achieve comprehensive immigration reform…."[568] After pointing out that Latinos have "voted overwhelmingly for progressive candidates" and given Barack Obama "two out of every three" of their votes, Medina has called on the "progressive community" to "expand and solidify the progressive coalition for the future" by putting "12 million" illegal immigrants "on the path to citizenship and eventually voting." Medina said that this will create "a governing coalition for the long term, not just for an election cycle."[569]
  • A union representing 7,000 employees of U.S. Immigration and Customs Enforcement (ICE) has passed a unanimous "Vote of No Confidence" in the Obama administration's leadership. This resolution stated that the administration's officials "have abandoned the Agency's core mission of enforcing United States Immigration Laws" and have engaged in "misguided and reckless initiatives, which could ultimately put many in America at risk."[570] [571]
  • The Oregon Education Association, SEIU, American Federation of State, County and Municipal Employees (AFMSCE), and American Federation of Teachers have contributed to support ballot measures in Oregon to increase personal income taxes and corporate taxes.[572]
  • The president of Montana's largest labor union (the MEA-MFT) has written, "Were it not for us almost any one of the virulent anti-government, anti-public school, anti-tax and spend ballot issues proposed in the last 25 years would have passed."[573] [574]
  • The California Teachers Association contributed $1 million "to defeat a ballot initiative seeking to ban same-sex marriage in California."[575] After this initiative passed, the SEIU and AFL-CIO filed briefs urging the U.S. Supreme Court to strike it down.[576]
  • The AFMSCE has published a "fact sheet" about the Affordable Care Act (Obamacare), which states: "We've fought to improve our health care system for decades — now we've won, and the Affordable Care Act (ACA) is being implemented."[577]
  • The SEIU, AFMSCE, Food & Commercial Workers, and United Auto Workers have given money to the Planned Parenthood Action Fund or the Planned Parenthood Federation, which performed more than 300,000 abortions in 2012.[578] [579] [580]

* Kim Moody is "one of the most respected labor journalists in North America" and a co-founder of Labor Notes, a magazine for union activists.[581] [582] [583] In a 2007 article published in the journal International Socialism, Moody wrote that "most" of the staff of Labor Notes:

 

started with the International Socialists at that time, but the idea was that it would not be controlled by the organization and that it would be independent, which is what by and large has happened, although the staff tend to be socialist for the most part.


The layer of militants in the US is not that different from those in Britain or anywhere else, except in the important sense that socialism as a political idea has not been on a large scale an important part of the labor movement in the US for half a century. That is not to say there are not a lot of socialists. You can go to a lot of, say, these auto workers' demonstrations and pick out somebody who's not in a group and you wouldn't think of as socialist, and you talk to them a little while and you find they are.[584]



Forced Donations


* Under current federal law that was established in the 1947 Taft-Hartley Act, private-sector employees have "the right to refrain from any or all" union-related "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…."[585] [586] [587]


* In the 1963 Supreme Court case of National Labor Relations Board v. General Motors Corporation, the Justices ruled (8-0) that the above provision of the law means employees can be forced to be dues-paying union members, but employees cannot be forced to be full union members who are subject to all union rules.[588] [589] [590] [591]


* In the 1977 Supreme Court case of Abood v. Detroit Board of Education, the Justices ruled (9-0) that governments can force government employees to pay union dues that are used for representational activities (like collective bargaining and contract administration), but they cannot force government employees who are not full union members to pay for union political activities. Per the ruling:


[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State. … These principles prohibit a State from compelling any individual to affirm his belief in God … or to associate with a political party … as a condition of retaining public employment. They are no less applicable to the case at bar, and they thus prohibit the appellees [the Detroit Board of Education] from requiring any of the appellants [teachers] to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher.

 

We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative. Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

 

There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited. … We have no occasion in this case, however, to try to define such a dividing line.[592]


* The Abood ruling was unanimous, but four of the nine Justices joined in three separate opinions stating that the ruling did not go far enough in protecting workers from being forced to support union political activities. Per these opinions:


I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union.

 

[T]he Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.

 

I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority [nonmember] employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation [should be on the government, not the nonmember employees].[593]


* In the 2014 Supreme Court case of Harris v. Quinn, the majority (5-4) censured the Abood decision, but the Harris case differed from Abood, and the Justices did not overrule it. In Harris, the majority wrote that the Justices who decided Abood "seriously erred," the decision was "questionable on several grounds," and the Court:


does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as … [political or nonpolitical].

 

Employees who suspect that a union has improperly put certain expenses in the [nonpolitical] category must bear a heavy burden if they wish to challenge the union's actions. "[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion" … and litigating such cases is expensive.


* In 1988, the U.S. Supreme Court ruled 5-3 in Communications Workers v. Beck that private-sector workers who are not full union members cannot be forced to pay for the "social, charitable, and political" activities of unions. They can only be forced to pay the portion of dues used for "collective bargaining, contract administration, and grievance adjustment." Per the ruling, the federal law that requires compulsory unionism in certain situations does not:


provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose.[594] [595] [596] [597]


* Notwithstanding the above Supreme Court rulings and others,[598] the practical ability of workers to not be forced into supporting union political activities has been impacted by:

  • a 2012 National Labor Relations Board (NLRB) ruling stating that unions can force workers who are not full union members to pay for union political activities if they are "closely linked" to a union's representational activities.[599] The NLRB members who issued this ruling (all appointed by President Obama[600]) used reasoning that was:

    - rejected by the Supreme Court in Communications Workers v. Beck because it is "plainly contrary to the intent of" the law.[601] [602]
    - rejected by a federal appeals court because it would allow unions to force nonmembers to financially support "virtually all" of their "political activities."[603] [604]

  • a 2012 NLRB ruling stating that unions do not need to provide employees with independent audited evidence that they have accurately accounted for the costs of union political activities.[605]
  • federal court and NLRB rulings allowing unions to force workers who are not full union members to pay for union political activities unless they file an objection every year during a "window period" set by the unions.[606] [607] [608] [609]
  • a 1995 NLRB ruling stating that unions are not required to notify workers more than once per year that they can opt out of paying for union political activities. This notice can be published in the interior of a union newsletter primarily dedicated to promoting Democratic Party causes without any indication on the cover that such a notice is contained therein.[610] [611]

Footnotes

[1] Entry: "labor union." Random House Kernerman Webster's College Dictionary, 2000. http://www.thefreedictionary.com/labor+union


"an organization of wage earners or salaried employees for mutual aid and protection and for dealing collectively with employers; trade union."


[2] Entry: "trade union." American Heritage Dictionary of the English Language. Houghton Mifflin, 2000. http://www.thefreedictionary.com/trade+union


"A labor union, especially one limited in membership to people in the same trade."


[3] Entry: "trade union." Random House Kernerman Webster's College Dictionary, 2000. http://www.thefreedictionary.com/trade+union

 

"a labor union of workers in related crafts, as distinguished from general workers or a union including all workers in an industry."


[4] U.S. Code Title 29, Chapter 7, Subchapter II, Section 152: "National Labor Relations – Definitions." Accessed March 4, 2014 at http://www.law.cornell.edu/uscode/text/29/152


"The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work."


[5] Entry: "bargaining unit." Merriam-Webster's Unabridged Dictionary. Accessed March 21, 2014 at http://www.merriam-webster.com/dictionary/bargaining unit


"the group of employees on whose behalf a union seeks to negotiate a collective agreement"


[6] Web page: "Collective bargaining." Cornell University Law School, Legal Information Institute. Accessed 2/14/2014 at http://www.law.cornell.edu/wex/collective_bargaining


"Collective bargaining consists of negotiations between an employer and a group of employees so as to determine the conditions of employment. The result of collective bargaining procedures is a collective agreement. Employees are often represented in bargaining by a union or other labor organization."


[7] Entry: "National Labor Relations Board." Nolo's Plain-English Law Dictionary. Accessed March 21, 2014 at https://www.nolo.com/…


An independent agency created by Congress in 1935 to administer the National Labor Relations Act. The NLRB's purposes are to remedy unfair labor practices by unions or employers, and to hold elections to determine whether a particular group of employees wants to be represented by a particular union. NLRB refers both to the agency as a whole and to five members who sit as a court and issue decisions in labor disputes. These decisions can be appealed to the U.S. Court of Appeals.


[8] Article: "National Labor Relations Board." Columbia Electronic Encyclopedia. Columbia University Press, 2013. http://encyclopedia2.thefreedictionary.com/…


This board determines proper bargaining units, conducts elections for union representation, and investigates charges of unfair labor practices by employers. Unfair practices include interference, coercion, or restraint in labor's self-organizational rights; interference with the formation of labor unions; encouraging or discouraging membership in a union; and refusal to bargain collectively with a duly chosen employee representative. The NLRB does not have the power to consider cases involving real estate brokers, agricultural employees, domestic workers, family workers, government employees, and church-run schools.


[9] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 14: "Jurisdiction to conduct an election. The jurisdiction of the NLRB to direct and conduct an election is limited to those enterprises that affect commerce. (This is discussed in greater detail at pp. 33–36.)"


Pages 33-35:


Authority of the NLRB—Enterprises whose operations affect commerce. The NLRB gets its authority from Congress by way of the National Labor Relations Act. The power of Congress to regulate labor-management relations is limited by the commerce clause of the United States Constitution.† Although it can declare generally what the rights of employee are or should be, Congress can make its declaration of rights effective only in respect to enterprises whose operations "affect commerce" and labor disputes that "affect commerce." The NLRB, therefore, can direct elections and certify the results only in the case of an employer whose operations affect commerce. Similarly, it can act to prevent unfair labor practices only in cases involving labor disputes that affect, or would affect, commerce.


What is commerce. "Commerce" includes trade, traffic, transportation, or communication within the District of Columbia or any Territory of the United States; or between any State or Territory and any other State, Territory, or the District of Columbia; or between two points in the same State, but through any other State, Territory, the District of Columbia, or a foreign country. Examples of enterprises engaged in commerce are:


• A manufacturing company in California that sells and ships its product to buyers in Oregon.

• A company in Georgia that buys supplies in Louisiana.

• A trucking company that transports goods from one point in New York State through Pennsylvania to another point in New York State.

• A radio station in Minnesota that has listeners in Wisconsin.


When the operations of an employer affect commerce. Although a company may not have any direct dealings with enterprises in any other State, its operations may nevertheless affect commerce. The operations of a Massachusetts manufacturing company that sells all of its goods to Massachusetts wholesalers affect commerce if the wholesalers ship to buyers in other States. The effects of a labor dispute involving the Massachusetts manufacturing concern would be felt in other States and the labor dispute would, therefore, "affect" commerce. Using this test, it can be seen that the operations of almost any employer can be said to affect commerce. As a result, the authority of the NLRB could extend to all but purely local enterprises.


The scope of the commerce clause is limited, however, by the first amendment's prohibition against Congress' enacting laws restricting the free exercise of religion. Because of this potential conflict, and because Congress has not clearly expressed an intention that the Act cover lay faculty in church-operated schools, the Supreme Court has held that the Board may not assert jurisdiction over faculty members in such institutions.


The Board does not act in all cases affecting commerce. Although the National Labor Relations Board could exercise its powers to enforce the Act in all cases involving enterprises whose operations affect commerce, the Board does not act in all such cases. In its discretion it limits the exercise of its power to cases involving enterprises whose effect on commerce is substantial. The Board's requirements for exercising its power or jurisdiction are called "jurisdictional standards." These standards are based on the yearly amount of business done by the enterprise, or on the yearly amount of its sales or of its purchases. They are stated in terms of total dollar volume of business and are different for different kinds of enterprises. The Board's standards in effect on July 1, 1990, are as follows: …


The Act does not cover certain Individuals. In addition to the foregoing limitations, the Act states that the term "employee" shall include any employee except the following:


• Agricultural laborers.

• Domestic servants.

• Any individual employed by his parent or spouse.

• Independent contractors.

• Supervisors.

• Individuals employed by an employer subject to the Railway Labor Act.

• Government employees, including those employed by the U .S. Government, any Government corporation or Federal Reserve Bank, or any State or political subdivision such as a city, town, or school district.


† NOTE: For facts regarding the interpretation of the commerce clause of the U.S. Constitution, visit Just Facts' research on the Constitutional History of Social Spending.


[10] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 16:


The NLRA contains a code of conduct for employers and unions and regulates that conduct in unfair labor practice (ULP) proceedings. Unfair labor practices are remedied through adjudicatory procedures under the NLRA, in which the Board and the General Counsel have independent functions.


The General Counsel has sole responsibility— independent of the Board—to investigate charges of unfair labor practices, and to decide whether to issue complaints with respect to such charges. The Board, in turn, acts independently of the General Counsel in deciding ULP cases.


The General Counsel investigates ULP charges through the Agency's network of Regional, Subregional, and Resident Offices (field offices). If there is reason to believe that a ULP charge has merit, the Regional Director, on behalf of the General Counsel, issues and prosecutes a complaint against the charged party, unless a settlement is reached. With some exceptions, a complaint that is not settled or withdrawn is tried before an administrative law judge (ALJ), who issues a decision. The decision may be appealed by any party to the Board through the filing of exceptions. The Board decides cases on the basis of the formal trial record, according to the statute and the body of case law that has been developed by the Board and the federal courts.


If the Board finds that a violation of the Act has been committed, the role of the General Counsel thereafter is to act on behalf of the Board to obtain compliance with the Board's order remedying the violation. Although Board decisions and orders in ULP cases are final and binding with respect to the General Counsel, they are not self-enforcing. The statute provides that any party may seek review of the Board's decision in a United States Court of Appeals. In addition, if a party refuses to comply with a Board decision, the Board itself must petition for court enforcement of its order. In court proceedings to review or enforce Board decisions, the General Counsel represents the Board and acts as its attorney. Also, the General Counsel acts as the Board's attorney in contempt proceedings and when the Board seeks injunctive relief under Sections 10(e) and (f) of the NLRA after the entry of a Board order and pending enforcement or review of proceedings in circuit court.


Section 10(j) of the NLRA empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of ULP charges, in certain instances, would frustrate the Act's remedial objectives. In determining whether the use of Section 10(j) is appropriate in a particular case, the principal question is whether injunctive relief is necessary to preserve the Board's ability to effectively remedy the unfair labor practice alleged, and whether the alleged violator would otherwise reap the benefits of its violation.


[11] U.S. Code Title 29, Chapter 7, Subchapter II, Section 160: "Prevention of unfair labor practices." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/160


(a) Powers of Board generally

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise….


(b) Complaint and notice of hearing; answer; court rules of evidence inapplicable

Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint….


(c) Reduction of testimony to writing; findings and orders of Board

The testimony taken by such member, agent, or agency or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter….


(d) Modification of findings or orders prior to filing record in court

Until the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.


(e) Petition to court for enforcement of order; proceedings; review of judgment

The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28. …


(f) Review of final order of Board on petition to court

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside. …


(j) Injunctions

The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.


[12] U.S. Code Title 29, Chapter 7, Subchapter II, Section 153: "National Labor Relations Board." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/153


(a) Creation, composition, appointment, and tenure; Chairman; removal of members

The National Labor Relations Board (hereinafter called the "Board") created by this subchapter prior to its amendment by the Labor Management Relations Act, 1947 [29 U.S.C. 141 et seq.], is continued as an agency of the United States, except that the Board shall consist of five instead of three members, appointed by the President by and with the advice and consent of the Senate. Of the two additional members so provided for, one shall be appointed for a term of five years and the other for a term of two years. Their successors, and the successors of the other members, shall be appointed for terms of five years each, excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Board. Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. …


d) General Counsel; appointment and tenure; powers and duties; vacancy

There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. …


[13] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Pages 13-14:


The five-member Board primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President with the advice and consent of the Senate, and serve staggered five-year terms.2 The President designates one of the Board Members as Chairman.

 

The General Counsel


Congress created the position of General Counsel in its current form in the Taft-Hartley Act of 1947. The General Counsel is appointed by the President to a four-year term, with Senate consent, and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB Regional Offices. In performing delegated functions, and in some aspects statutorily assigned functions, the General Counsel acts on behalf of the Board.


However, with respect to the investigation and prosecution of unfair labor practice cases, the General Counsel has sole prosecutorial authority under the statute, independent of the Board. Richard F. Griffin, Jr., was nominated by the President [Obama] for General Counsel and appointed to a full four-year term on November 1, 2013. …

 

2 Even though Board Members have five-year-terms, a new five-year term begins running immediately upon the expiration of the previous Member's term and the seat remains vacant until an individual is nominated and confirmed by the Senate. Therefore, a significant lapse of time could occur between when a term expires and a new Board Member is confirmed, which means that a new Board Member might serve only a portion of a five-year term.


[14] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 7:


The law is administered and enforced principally by the National Labor Relations Board and the General Counsel acting through 52 regional and other field offices located in major cities in various sections of the country. The General Counsel and the staff of the Regional Offices investigate and prosecute unfair labor practice cases and conduct elections to determine employee representatives. The five-member Board decides cases involving charges of unfair labor practices and determines representation election questions that come to it from the Regional Offices.


[15] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 10: "Several consolidation efforts occurred in Agency field offices and in Headquarters in Washington, DC. By the end of FY 2013, the Agency had reduced the number of Regional Offices from 32 to 26, in order to adjust the Agency's presence to the case filing developments that have occurred over the years by more evenly distributing case intake among regions."


[16] Book: Labored Relations: Law, Politics, and the NLRB. By William B. Gould. MIT Press, 2001.


Page 15: "Traditionally, the Board consists of three members of the president's own party and two members of the opposition. In contrast to the situation in other regulatory agencies—most of which are also quasi-judicial—this political allocation is a matter of custom, not of law."


[17] "2014 Performance and Accountability Report." National Labor Relations Board, November 2, 2014. http://www.nlrb.gov/…


Page 18:


Below is information about the terms of the current Presidential appointees of the NLRB.

 

   Sworn In  Term to Expire
Mark Gaston Pearce (Chairman)  4/7/2010  8/27/2018
Philip A. Miscimarra (Member)  8/7/2013  12/16/2017
Kent Y. Hirozawa (Member)  8/5/2013  8/27/2016
Harry I Johnson, III (Member)  8/12/2013  8/27/2015
Nancy J. Schiffer (Member)  8/2/2013  12/16/2014
Richard F. Griffin, Jr. (General Counsel)  11/4/2013  10/31/2017


[18] Webpage: "Chronology of Swearing-In Events." Joint Congressional Committee on Inaugural Ceremonies. Accessed August 23, 2013 at http://www.inaugural.senate.gov/swearing-in/chronology


"January 21, 2013 … Fifty-Seventh Inaugural Ceremonies … Barack H. Obama … January 20, 2009 … Fifty-Sixth Inaugural Ceremonies … Barack H. Obama"


[19] Webpage: "Board Members Since 1935." National Labor Relations Board. Accessed August 29, 2014 at http://www.nlrb.gov/who-we-are/board/board-members-1935


Board Members  Political Party
Mark G. Pearce  D
Nancy J. Schiffer  D
Kent Y. Hirozawa  D
Philip A. Miscimarra  R
Harry I. Johnson, III  R


[20] Article: "Labor Law." West's Encyclopedia of American Law, 2005. http://www.encyclopedia.com/topic/labor_law.aspx


"The railroad and airline industries are governed by the Federal Railway Labor Act (45 U.S.C.A. § 151 et seq.), originally passed in 1926 and substantially amended in 1934."


[21] Report: "Federal Labor Relations Statutes: An Overview." By Alexandra Hegji. Congressional Research Service, November 26, 2012. http://fas.org/sgp/crs/misc/R42526.pdf


Summary:


The Railway Labor Act (RLA) was enacted in 1926, and its coverage extends to railway and airline carriers, unions, and employees of the carriers. The RLA guarantees employees the right to organize and collectively bargain with their employers over conditions of work and protects them against unfair employer and union practices. It lays out specific procedures for selecting employee representatives and provides a dispute resolution system that aims to efficiently resolve labor disputes between parties, with an emphasis on mediation and arbitration. The RLA provides multiple processes for dispute resolution, depending on whether the dispute is based on a collective bargaining issue or the application of an existing collective bargaining agreement.


[22] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 8: "The Federal Labor Relations Authority (FLRA) is an independent administrative federal agency created by Title VII of the Civil Service Reform Act of 1978, which is commonly known as the Federal Service Labor-Management Relations Statute (Statute). The Statute recognizes the right of most non-postal federal employees to bargain collectively and to participate, through labor organizations of their choice, in decisions affecting their conditions of employment."


Page 9: "The Authority is a quasi-judicial body…. The Authority adjudicates unfair labor practice disputes and issues raised by representation petitions and exceptions to grievance arbitration awards, and resolves negotiability disputes raised by the parties during collective bargaining."


[23] "Fiscal Year 2013 Performance and Accountability Report." U.S. Federal Labor Relations Authority, December 16, 2013. http://www.flra.gov/webfm_send/781


Page 3:


The U.S. Federal Labor Relations Authority (FLRA) is responsible for establishing policies and guidance regarding the labor-management relations program for 2.1 million non-Postal, federal employees worldwide, approximately 1.2 million of whom are represented in 2,200 bargaining units. The FLRA was created by Title VII of the Civil Service Reform Act of 1978, also known as the Federal Service Labor-Management Relations Statute (the Statute). The agency's real genesis, however, dates from the issuance of Executive Order 10988 by President Kennedy in 1962. In 2012, the FLRA celebrated the 50th anniversary of the Order, which established the first government-wide, labor-management relations program within the federal government. In 1970, President Nixon established the Federal Labor Relations Council by Executive Order 11491 to administer the federal labor-management relations program and to make final decisions on policy questions and major disputes arising under Executive Order 10988. Executive Order 11491, as amended, was the basis for President Carter's proposal to Congress to create the FLRA as an independent agency.


Page 4: "The Authority is empowered to: resolve disputes over the negotiability of proposals made in collective bargaining; decide whether conduct alleged in a complaint constitutes an unfair labor practice (ULP); resolve exceptions to grievance arbitration awards; and review the decisions of Regional Directors in representation disputes over union elections and unit determinations."


Page 25:


The Federal Service Labor-Management Relations Statute sets out a specific procedure for employees to petition to be represented by a labor union and to determine which employees will be included in a "bargaining unit" that a union represents. Implementing this procedure, the FLRA conducts secret-ballot elections for union representation and resolves a variety of issues related to questions of union representation of employees. These issues include, for example, whether particular employees are managers or "confidential" employees excluded from union representation, whether there has been election misconduct on the part of agencies or unions, and whether changes in union and agency organizations affect existing bargaining units.


[24] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7104: "Federal Labor Relations Authority." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7104


(a) The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party. No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law.


(b) Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. The President shall designate one member to serve as Chairman of the Authority. The Chairman is the chief executive and administrative officer of the Authority.


(c) A member of the Authority shall be appointed for a term of 5 years. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. The term of any member shall not expire before the earlier of—

(1) the date on which the member's successor takes office, or

(2) the last day of the Congress beginning after the date on which the member's term of office would (but for this paragraph) expire.


(d) A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority.


(e) The Authority shall make an annual report to the President for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered.


(f)

(1) The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by law.

(2) The General Counsel may—

(A) investigate alleged unfair labor practices under this chapter,

(B) file and prosecute complaints under this chapter, and

(C) exercise such other powers of the Authority as the Authority may prescribe.

(3) The General Counsel shall have direct authority over, and responsibility for, all employees in the office of General Counsel, including employees of the General Counsel in the regional offices of the Authority.


[25] "Fiscal Year 2013 Performance and Accountability Report." U.S. Federal Labor Relations Authority, December 16, 2013. http://www.flra.gov/webfm_send/781


Page 4: "The Members are appointed for five-year, staggered terms and one Member is designated by the President to serve as Chairman, who acts as the agency's chief executive and administrative officer."


[26] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7104: "Federal Labor Relations Authority." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7104


"(a) The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party."


[27] "Fiscal Year 2013 Performance and Accountability Report." U.S. Federal Labor Relations Authority, December 16, 2013. http://www.flra.gov/webfm_send/781


Page 4:


The Authority is empowered to … review the decisions of Regional Directors in representation disputes over union elections and unit determinations. …


The Authority Members appoint Administrative Law Judges (ALJs) to hear and prepare recommended decisions in cases involving alleged ULPs, as well as decisions involving applications for attorney fees filed pursuant to the Back Pay Act or the Equal Access to Justice Act. The Office of the Administrative Law Judges (OALJ) also provides settlement opportunities in all ULP cases. Decisions of the ALJs may be appealed to the Authority.


Page 5: "The Regional Offices, on behalf of the General Counsel, investigate and resolve alleged ULPs, file and prosecute ULP complaints, and provide training and alternative dispute resolution (ADR) services. In addition, through delegation by the Authority, the Regional Offices process representation petitions and conduct secret ballot elections."


[28] Webpage: "Authority Chairman and Members." Federal Labor Relations Authority. Accessed January 3, 2015 at http://www.flra.gov/authority_chairman_and_members


Chairman:

Carol Waller Pope


Members:

Ernest DuBester

Patrick Pizzella


[29] Webpage: "Carol Waller Pope." Federal Labor Relations Authority. Accessed January 3, 2015 at http://www.flra.gov/cpope_bio


On November 12, 2013, Carol Waller Pope returned to the Federal Labor Relations Authority (FLRA) as Chairman, having been nominated by President Barack Obama and confirmed by the United States Senate. Chairman Pope retired as Chairman of the FLRA in January 2013, a position to which she was originally designated by the President in 2009. Nominated previously by both President William J. Clinton and George W. Bush, she has served as a Member of the Authority since November 2000.


[30] Webpage: "Ernest DuBester." Federal Labor Relations Authority. Accessed January 3, 2015 at http://www.flra.gov/edubester_bio


Ernest DuBester began serving his second term as a Member of the Federal Labor Relations Authority (FLRA) on November 12, 2013. Appointed by President Barack Obama and unanimously confirmed by the United States Senate to both of his terms, Member DuBester has served as an FLRA Member since August 2009, and also served as FLRA Chairman from January – November of 2013. Member DuBester was previously nominated by President Clinton and served as Chairman and Member of the National Mediation Board from 1993-2001.


[31] Webpage: "Patrick Pizzella." Federal Labor Relations Authority. Accessed January 3, 2015 at http://www.flra.gov/ppizzella_bio


Patrick Pizzella was sworn in as a Member of the Federal Labor Relations Authority on November 12, 2013. He was nominated by the President on August 2 and confirmed by the U. S. Senate on October 16. Prior to that he was Principal at Patrick Pizzella, LLC, a position he held since 2009. Member Pizzella served as Assistant Secretary of Labor for Administration and Management at the U.S. Department of Labor from 2001 to 2009. Member Pizzella was designated by President George W. Bush to serve as a member of the Board of Directors of the Overseas Private Investment Corporation (OPIC) from January 18, 2004 to April 26, 2005.


[32] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Are any Federal agencies and their employees specifically excluded from the Statute's coverage?


Also excluded is the U.S. Postal Service because it is a government-owned corporation and is not an agency within the meaning of section 7103(a)(3). The Postal Service and its employees are subject to the National Labor Relations Act. U.S. Postal Serv., Dallas, Tex., 8 FLRA 386 (1982).


[33] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Pages 8-9:


The Federal Labor Relations Authority (FLRA) is an independent administrative federal agency created by Title VII of the Civil Service Reform Act of 1978, which is commonly known as the Federal Service Labor-Management Relations Statute (Statute). The Statute recognizes the right of most non-postal federal employees to bargain collectively and to participate, through labor organizations of their choice, in decisions affecting their conditions of employment. Employees of the U.S. Postal Service are covered under a different law – The Postal Reorganization Act of 1970.


[34] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: "Labor-Management Relations, Definitions; application." Accessed June 25, 2014 at http://www.law.cornell.edu/uscode/text/5/7103


(a) For the purpose of this chapter—

(2) "employee" means an individual—

(A) employed in an agency …

(B) … but does not include—

(i) an alien or noncitizen of the United States who occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the International Communication Agency, the Agency for International Development, the Department of Agriculture, or the Department of Commerce; or

(v) any person who participates in a strike in violation of section 7311 of this title;

(3) "agency" means an Executive agency (including a nonappropriated fund instrumentality described in section 2105 (c) of this title and the Veterans' Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Printing Office, and the Smithsonian Institution but does not include—

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(C) the Central Intelligence Agency;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States Secret Service Uniformed Division.


[35] U.S. Code Title 37, Chapter 1, Section 101: "Pay and Allowances of the Uniformed Services, Definitions." Accessed January 3, 2015 at http://www.law.cornell.edu/uscode/text/37/101


(3) The term "uniformed services" means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and Public Health Service.

(4) The term "armed forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.


[36] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. Ten other states allow bargaining for some state and/or local employees (e.g., public safety, teachers). The remaining nine states lack collective bargaining statutes for their state and local government employees (American Federation of State County & Municipal Employees [AFSCME], 2010). In some instances, however, executive orders or local ordinances confer rights to bargain or have representation.


[37] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[38] Article: "Unit Determination." By Jonathan P. West. Encyclopedia of Public Administration and Public Policy, Volume 2 (K-Z). Edited by Jack Rabin. CRC Press, 2003.


Page 1249: "At the state level, it is often the Public Employees Relations Boards (PERBs) that make these [bargaining unit] decisions."


[39] As an example of the scope and complexity of state and local government employee labor relations, the laws controlling the California Public Employment Relations Board fill 111 pages of Word document in Times New Roman size 12 font. [Laws: "Chapter 10 Meyers-Milias-Brown Act, Local Public Employee Organizations." State of California, January 1, 2013. http://www.perb.ca.gov/laws/statutes.aspx]


[40] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 7: "To ensure that employees can freely choose their own representatives for the purpose of collective bargaining, or choose not to be represented, the Act establishes a procedure by which they can exercise their choice at a secret-ballot election conducted by the National Labor Relations Board."


Page 13: "The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the Board."


[41] Web page: "How to Organize a Union." Communication Workers of America. Accessed June 25, 2014 at http://www.cwa-union.org/pages/how_to_organize_a_union


"How you and your co-workers decide whether you want a union depends on where you work. At most private employers, workers make the choice through elections overseen by the National Labor Relations Board. Your get your union if a majority of the workers voting in the election vote for the union."


[42] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"To start the election process, a petition must be filed with the nearest NLRB Regional Office showing interest in the union from at least 30% of employees."


[43] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 14: "Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election."


[44] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(b) Determination of bargaining unit by Board

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof….


(c) Hearings on questions affecting commerce; rules and regulations

(3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.


NOTE: More information about what constitutes an "appropriate" bargaining unit are provided here.


[45] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 7:


Section 9(a) of the NLRA provides that a representative selected by "a majority of the Employees in a unit appropriate for purposes of collective bargaining shall be the exclusive representative of all the Unit".47 The Board need not determine "the only appropriate unit, or the ultimate unit, or the most appropriate unit: the Act requires only that the unit be 'appropriate.' "48 Consequently, if a petitioning Union seeks a unit that the Board finds appropriate, the Employer's alternative proposals will not be considered.49


47 29 U.S.C. A7 159(a).

48 Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enf'd, 190 F.2d 576 (7th Cir. 1951) (emphasis in original).

49 P.J. Dick Contracting, 290 NLRB 150 (1988).


Page 8:


The NLRB will assemble an "appropriate" bargaining unit based on the "community-of-interests" test, which assesses whether Employees enjoy a "substantial mutuality of interest in wages, hours and working conditions…".50 The Board considers a number of factors in determining whether there exists an appropriate unit, including: (i) similarity of duties, skills, wages, fringe benefits, hours, 'interest and working conditions; (ii) amount of interchange among Employees; (iii) the Employer's organizational structure; (iv) integration of the work flow and interrelationship of the production process; (v) bargaining history in the particular unit and industry; (vi) extent of organization; and (vii) desires of petitioner.51


51 See Capital Bakers, Inc., 168 NLRB 904 (1967).


[46] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"To start the election process, a petition must be filed with the nearest NLRB Regional Office showing interest in the union from at least 30% of employees. NLRB agents will then investigate to make sure the Board has jurisdiction, the union is qualified, and there are no existing labor contracts that would bar an election."


[47] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Pages 13-15:


Petition for certification of representatives. The NLRB can conduct such an election only when a petition has been filed requesting one. A petition for certification of representatives can be filed by an employee or a group of employees or any individual or labor organization acting on their behalf, or it can be filed by an employer. If filed by or on behalf of employees, the petition must be supported by a substantial number of employees who wish to be represented for collective bargaining and must state that their employer declines to recognize their representative. If filed by an employer, the petition must allege that one or more individuals or organizations have made a claim for recognition as the exclusive representative of the same group of employees. …


Who can qualify as bargaining representative. Section 2(4) of the Act provides that the employee representative for collective bargaining can be "any individual or labor organization." A supervisor or any other management representative may not be an employee representative. It is NLRB policy to direct an election and to issue a certification unless the proposed bargaining agent fails to qualify as a bona fide representative of the employees. In determining a union's qualifications as bargaining agent, it is the union's willingness to represent the employees rather than its constitution and bylaws that is the controlling factor. The NLRB's power to certify a labor organization as bargaining representative is limited by Section 9(b)(3) which prohibits certification of a union as the representative of a unit of plant guards if the union "admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards."


Bars to Election—Existing collective-bargaining contract. The NLRB has established the policy of not directing an election among employees presently covered by a valid collective-bargaining agreement except in accordance with certain rules. These rules, followed in determining whether or not an existing collective-bargaining contract will bar an election, are called the NLRB contract bar rules. Not every contract will bar an election. Examples of contracts that would not bar an election are:


• The contract is not in writing, or is not signed.

• The contract has not been ratified by the members or the union, if such is expressly required.

• The contract does not contain substantial terms or conditions of employment sufficient to stabilize the bargaining relationship.

• The contract can be terminated by either party at any time for any reason.

• The contract contains a clearly illegal union-security clause.

• The bargaining unit is not appropriate.

• The union that entered the contract with the employer is no longer in existence or is unable or unwilling to represent the employees.

• The contract discriminates between employees on racial grounds.

• The contract covers union members only.

• The contracting union is involved in a basic internal conflict at the highest levels with resulting unstabilizing confusion about the identity of the union.

• The employer's operations have changed substantially since the contract was executed.


Time provisions. Under the NLRB rules a valid contract for a fixed period of 3 years or less will bar an election for the period covered by the contract. A contract for a fixed period of more than 3 years will bar an election sought by a contracting party during the life of the contract, but will act as a bar to an election sought by an outside party for only 3 years following its effective date. A contract of no fixed period will not act as a bar at all.


[48] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


The agents will then seek an election agreement between the employer and union setting the time and place for balloting, the ballot language, the size of the unit, and a method to determine who is eligible to vote. Once an agreement is in place, the parties authorize the NLRB Regional Director to conduct the election. If no agreement is reached, the Regional Director can schedule a hearing and then order the election and set the conditions in accordance with the Board's rules and its decisions.


Typically, elections are held within 30 days of a Director's order or authorization. However, an election may be postponed if a party files charges alleging conduct that would interfere with employee free choice in the election, such as threatening loss of jobs or benefits by an employer or a union, granting promotions, pay raises, or other benefits to influence the vote, or making campaign speeches to employees on company time within 24 hours of the election.


When a union is already in place, a competing union may file an election petition if the labor contract has expired or is about to expire, and it can show interest by at least 30% of the employees. This would normally result in a three-way election, with the choices being the incumbent labor union, the challenging one, and "none." If none of the three receives a majority vote, a runoff will be conducted between the top two vote-getters.


Representation and decertification elections are decided by a majority of votes cast. Observers from all parties may choose to be present when ballots are counted.


[49] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.


[50] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice.


[51] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 14: "Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election."


[52] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"To start the election process, a petition must be filed with the nearest NLRB Regional Office showing interest in the union from at least 30% of employees."


[53] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 18:


In the construction industry, however, the same rules do not apply. Section 8(f) of the NLRA Permits construction contractors and labor unions to enter into a form of collective bargaining agreement "without regard to the union's majority status." Employers in the construction industry, in recognition of the relatively short-term duration of projects and mobility of work forces, are permitted by Section 8(f) of the Act to execute bargaining agreements with Unions prior to the actual employment of Employees, without running afoul of prohibitions against Employers giving unlawful support and assistance to minority Unions. Such bargaining agreements may not be repudiated during the life of the Agreement; yet, upon expiration of the pre-hire agreement, the signatory Union does not enjoy a presumption of majority status, and either party may repudiate the bargaining relationship at that time.115 Of course, the contractor must comply with the notice provisions specified in the contract and with the withdrawal provisions of any Multi-Employer agreement to which it is a party. …


[54] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(f) Agreement covering employees in the building and construction industry

It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in subsection (a) of this section as an unfair labor practice) because

(1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement, or

(2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or

(3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or

(4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to subsection (a)(3) of this section: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159 (c) or 159 (e) of this title.


[55] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 38: "94.3 percent of all initial elections were conducted within 56 days of filing of the petition … Initial elections in union representation cases were conducted in a median of 38 days from the filing of the petition"


[56] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 16: "NLRB elections are conducted in accordance with strict standards designed to give the employee voters an opportunity to freely indicate whether they wish to be represented for purposes of collective bargaining. Election details, such as time, place, and notice of an election, are left largely to the Regional Director who usually obtains the agreement of the parties on these matters."


[57] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


The agents will then seek an election agreement between the employer and union setting the time and place for balloting, the ballot language, the size of the unit, and a method to determine who is eligible to vote. Once an agreement is in place, the parties authorize the NLRB Regional Director to conduct the election. If no agreement is reached, the Regional Director can schedule a hearing and then order the election and set the conditions in accordance with the Board's rules and its decisions.


Typically, elections are held within 30 days of a Director's order or authorization. However, an election may be postponed if a party files charges alleging conduct that would interfere with employee free choice in the election, such as threatening loss of jobs or benefits by an employer or a union, granting promotions, pay raises, or other benefits to influence the vote, or making campaign speeches to employees on company time within 24 hours of the election.


[58] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"Representation and decertification elections are decided by a majority of votes cast. Observers from all parties may choose to be present when ballots are counted."


[59] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 16: "Any party to an election who believes that the Board election standards were not met may, within 7 days after the tally of ballots has been furnished, file objections to the election with the Regional Director under whose supervision the election was held. In most cases, the Regional Director's rulings on these objections may be appealed to the Board for decision."


[60] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"Any party may file objections with the appropriate Regional Director within 7 days of the vote count. In turn, the Regional Director's ruling may be appealed to the Board in Washington."


[61] Decision 279 NLRB 51: Clarence E. Clapp. National Labor Relations Board, April 18, 1986. Decided 3-0. http://mynlrb.nlrb.gov/link/document.aspx/09031d45801b2a33


Pages 330-331:


The National Labor Relations Board, by a threemember panel, has considered objections to an election held 9 July 1985 and the Acting Regional Director's report recommending disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows two for and two against the Petitioner, with no challenged ballots. Neither the Petitioner nor the Employer filed objections to the election. …


Following the 9 July 1985 election, Jeffrey P. Fudge, an eligible voter, complained by letter dated 28 July 1985, and received by the Subregional Office 31 July 1985, that he had arrived at the polling area prior to the scheduled 5 p.m. closing of the polls, but that he found the polls closed and was thereby denied an opportunity to cast a ballot. …


The Board has long held that individual employees are not "parties" within the definition of "party" as set forth in Section 102.8 of the National Labor Relations Board's Rules and Regulations.1 We find, therefore, that Jeffrey P. Fudge is not a "party" to this proceeding and we shall dismiss Fudge's letter as purported objection made by an individual who is not a "party" to this proceeding.


[62] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer— …

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…


(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents …

(1) to restrain or coerce

(A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or …

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; …


[63] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: "Representatives and elections." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/157


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 as authorized in section 158 (a)(3) of this title.


[64] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


Examples of employer conduct that violates the law:


• Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.

• Threatening to close the plant if employees select a union to represent them.

• Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.

• Promising benefits to employees to discourage their union support.

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB.


Examples of labor organization conduct that violates the law:


• Threats to employees that they will lose their jobs unless they support the union.

• Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.

• Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted. …


[65] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(c) Expression of views without threat of reprisal or force or promise of benefit

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 an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.


[66] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 300:


The Board's early decisions, at least until 1941, were predicated on two major concepts. First, that every appeal by an employer in opposition to unions violated the Wagner Act provision against interference, restraint, and coercion because it inevitably created a fear in the minds of employees that the employer would use economic power against those who disregarded the employer's expressed desires. Second, that the choice of a bargaining representative was the exclusive concern of the employees and that the employer did not possess an interest sufficient to permit to intrusion. See Cox & Bok, Labor Law Cases and Materials, 170 et seq. (7th ed., 1969).


There was some conflict in the court of appeals and as is not infrequently the case when a conflict of principles becomes sharp enough in a significant area of law which by its nature is prone to a high emotional boiling point, the highest court of the land inevitably has to pass on it. This happened here. In 1941, in NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941), the United States Supreme Court was presented with the opportunity. The Court decided that the National Labor Relations Act did not prohibit employers from expressing their views about labor organizations, and this, for all practical purposes, marked the death knell of the so-called neutrality or enforced-silence requirement which had prevailed during the first 6 years. "The employer in this case," said the Court, "is as free as ever to take any side it may choose on this controversial issue."


This did not come as too great a surprise, for about a year earlier in Thornhill v. Alabama, 310 U.S. 88 (1940), the Supreme Court had made it clear that in the circumstances of our times "the dissemination of information concerning the facts of a labor dispute must be regarded as within the area of free discussion that is guaranteed by the Constitution" and that "labor relations are not matters of mere local or private concern." Indeed, added the Court, "free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of industrial society."


[67] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 17:


An election will be set aside if it was accompanied by conduct that the NLRB considers created an atmosphere of confusion or fear of reprisals and thus interfered with the employees' freedom of choice. In any particular case the NLRB does not attempt to determine whether the conduct actually interfered with the employees' expression of free choice, but rather asks whether the conduct tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free expression of the employees' choice, the election may be set aside. Examples of conduct the Board considers to interfere with employee free choice are:


• Threats of loss of jobs or benefits by an employer or a union to influence the votes or union activities of employees.

• A grant of benefits or promise to grant benefits to influence the votes or union activities of employees.

• An employer firing employees to discourage or encourage their union activities or a union causing an employer to take such action.

• An employer or a union making campaign speeches to assembled groups of employees on company time within the 24-hour period before the election.

• The incitement of racial or religious prejudice by inflammatory campaign appeals made by either an employer or a union.

• Threats or the use of physical force or violence against employees by an employer or a union to influence their votes.

• The occurrence of extensive violence or trouble or widespread fear of job losses which prevents the holding of a fair election, whether caused by an employer or a union.


[68] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"Results of an election will be set aside if conduct by the employer or the union created an atmosphere of confusion or fear of reprisals and thus interfered with the employees' freedom of choice."


[69] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 14:


The Employer may speak freely with the Employees concerning its position on unionization, but it cannot promise benefits nor threaten reprisals for Union activity.98 According to the Supreme Court, an employer is allowed to make "predictions" regarding the possible consequences of unionization so long as the "prediction" is carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control."99 Applying this standard, the Board has invalidated elections where, not based on objective facts, the Employer has threatened that unionization would cause a loss of business and plant closure, that unionization would lead to a loss of jobs, and that strikes or shutdowns would inevitably result.


99 NLRB v. Gissell Packing Co., 395 U.S. 575 (1969).


[70] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 317:


The Excelsior rule requires the employer to file with the Regional Director an election eligibility list containing the names and addresses of all eligible voters within 7 days after approval by the Regional Director of an election agreement or after a direction of election, and this information must be made available by the Regional Director to all parties in the election proceeding. Excelsior Underwear, 156 NLRB 1236 (1966). See also J. P. Phillips, Inc., 336 NLRB 1279 (2001) (duty to send Excelsior list to the parties lies squarely with the Region). …


In Trustees of Columbia University, 350 NLRB 574 (2007), the Board declined to require that the employer provide the e-mail addresses of the unit employees in compliance with the Excelsior rule. The Board majority stated that it was unwilling to extend Excelsior "without the benefit of amicus briefing and a fully developed record."


Compliance requires that the employer provide the full first and last name of the employees. Laidlaw Waste Systems, 321 NLRB 760 (1996); North Macon Health Care Facility, 315 NLRB 359 (1994); and Weyerhaeuser Co., 315 NLRB 963 (1994).


To be timely, the eligibility list must be received by the Regional Director within the required time; no extension of time is granted except in extraordinary circumstances. The filing of a petition for review does not stay this requirement. If the payroll period for eligibility purposes is subsequent to the election agreement or direction of election, the list must be filed within 7 days after the close of the determinative eligibility period. Failure to comply with this rule is deemed interference with the election and a ground, on proper objection, for invalidating the election.


[71] Webpage: "Proposed Improvements: NLRB Representation Case Procedures." National Labor Relations Board. Accessed August 25, 2014 at http://www.nlrb.gov/…


The National Labor Relations Board's (NLRB) proposed amendments to its rules and regulations governing representation case procedures are intended to modernize current Board procedures and streamline the processes governing representation elections. Specifically, the proposal will help to reduce unnecessary litigation, increase transparency and update the Board's rules to reflect modern communications technology. …


A list of eligible voters would include phone numbers and email addresses (when available).


[72] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 312:


Where company officials and supervisors called at employees' homes, the Board found that the cumulative effect of the interviews in these circumstances, which admittedly established the company's disapproval of the petitioning union, interfered with their free choice. In this posture, too, the election was set aside despite the absence of actual coercion. The Board reiterated the rule which consistently condemns the technique of calling all or a majority of the employees in the unit into the employer's office individually or calling on them at their homes to urge them to reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB 545 (1957); see also Hurley Co., 130 NLRB 282 (1961).


Page 313:


The rationale for invalidating elections involving the assembly of employees is not unlike the rationale in cases involving home visitations by officials and supervisors of the employer. In the latter situation the Board has made it clear that, whether or not the remarks during such visitations were coercive in character, the technique of visiting employees at their homes to urge them to reject the union as their bargaining representative is a ground for setting aside an election. See, for example, F. N. Calderwood, Inc., 124 NLRB 1211 (1959). The crux of that rationale is in the fact that the employer has "the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews" that it conducts. Plant City Welding & Tank Co., 119 NLRB 131, 133–134 (1957). …


Before leaving this line of cases, it should be explained that the Board has not drawn an analogy between home visitations by union representatives in the preelection period and home visitations by supervisors. "There is a substantial difference," the Board pointed out, "between the employment of the technique of individual interviews by employers on the one hand and by the union on the other. Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers. Thus, not only do unions have more need to seek out individual employees to present their views, but, more important, lack the relationship with the employees to interfere with their choice of representatives thereby." Plant City Welding, supra at 133–134. See also Teamsters Local 705 (K-Mart), 347 NLRB 439 (2006).


[73] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 16: "Generally, it is not an unfair labor practice for an Employer to a make a pre-election speech to Employees on company time and premises and to deny the Union's request for an Opportunity to respond."


[74] Paper: "Employer Free Speech." By Norman F. Burke. Fordham Law Review, 1957. Pages 266-291. http://ir.lawnet.fordham.edu/…


Page 281:


The Livingston Shirt Decision


… The case was set in the not uncommon situation in the South of an alignment of the forces of the community with the industrial employer to enter the lists against the would-be union. The employer had a no-solicitation rule which forbade organizational activities only during working hours. His antiunion activity included several noncoercive speeches to the assembled employees during working hours while denying the union equal opportunity to reply. After several elections, which the union lost, had been set aside, the union filed an unfair labor practice charge. The Board majority dismissed the complaint, holding:


"union access to company premises on other than working time) or a privileged no-solicitation rule (broad, but not unlawful because of the character of the business), an employer does not commit an unfair labor practice if he makes a preelection speech on company time and premises to his employees and denies the union's request for an opportunity to reply."94


89. Livingston Shirt Corp., 107 N.L.R.B. 400 (1953).

90. Id. at 409.


[75] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 318:


In Bonwit Teller [issued in 1951], the Board held that, regardless of the breadth of an employer's no-solicitation rule, an antiunion speech on company time and premises, combined with a denial of a union request to reply, is a basis for setting aside a subsequent representation election and finding an unfair labor practice. In General Electric and McCulloch, supra at 1251, the Board declined to overrule Livingston Shirt and return to Bonwit Teller.


Page 323: "A speech otherwise permissible by Peerless was found objectionable because the employees were required to attend without full compensation and without receiving their regular paychecks until after the meeting. Comet Electric, 314 NLRB 1215 (1994)."


[76] "Annual Report of the National Labor Relations Board For The Fiscal Year Ended September 30 1994." National Labor Relations Board, June 23, 1995. http://www.nlrb.gov/…


Page 36:


In Comet Electric,17 the Board majority found that an employer interfered with the employees' free choice in an election by requiring their attendance at a "captive audience" speech after their normal quitting time, without providing them full compensation for the time spent at the meeting and without distributing the employees' paychecks until the meeting concluded.


One week before the election, the employer told its employees to report back to the shop at 3 p.m. for a meeting. The employees' regular quitting time is 4 p.m. At the meeting, which lasted from 3 to 5:30 p.m., the employer's owners made an antiunion speech to the assembled employees. Although the employees normally would have received their paychecks at 4 p.m. that day, they were not paid until the meeting concluded. Following the meeting, the employees were not fully compensated for the time spent at the meeting.


The Board found that employee attendance at the meeting was mandatory and that employees were compelled to remain for its entire duration as a condition of receiving their paychecks. No employee was compensated for the 1-1/2 hours spent at the meeting beyond the normal 4 p.m. quitting time. In these circumstances, the Board found that "employees would reasonably perceive that the Union's campaign had caused them to suffer an economic detriment." The Board concluded that because of the captive audience speech, employees were required to give uncompensated time to the employer, and were effectively punished for seeking union. representation. Accordingly, the Board sustained the petitioner's objection and set aside the election.


Member Stephens, dissenting, would have found that the record was too ambiguous to support the finding that the employees were "compelled" to attend the entire meeting. He noted that it is not unlawful for an employer to subject its employees during working time to antiunion remarks. Member Stephens also noted that no employee left the meeting before it ended, the employer did not prevent any employee from leaving after 4 p.m., and there was no evidence that the owners would have withheld checks from anyone who had attempted to depart after 4 p.m.


17 314 NLRB 1215 (Chairman Gould and Members Devaney, Browning, and Cohen, Member Stephens dissenting).


[77] Decision 357 NLRB 168: 2 Sisters Food Group, Inc. and United Food and Commercial Workers International Union, Local 1167. National Labor Relations Board, December 29, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580799617


Pages 10, 14:


MEMBER BECKER, dissenting in part. …


An express or implied threat of discipline for not listening to the employer's speech indisputably adds to the speech the element of coercion that takes it outside the protection of both the First Amendment and Section 8(c) and permits it to serve as grounds for overturning the results of an election. I would restore at least some of the luster to the Board's "crown" the Board-supervised representation election – by holding objectionable such obvious and overtly coercive yet widespread conduct.


[78] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Pages 312-313:


Among the issues that the Board has had to determine in this area of law is the one that deals with the assembly of employees by the employer at a focal point of authority. Indeed, in General Shoe itself this was a question for the Board to decide.


On the day before the election the employer had the employees brought to his office in 25 groups of 20 to 25 and, in the language of that decision, "in the very room which each employee must have regarded as the locus of final authority in the plant, read every small group the same intemperate anti-union address." In the same case, the employer instructed his supervisors "to propagandize employees in their homes." The Board found that this went "so far beyond the presently accepted custom of campaigns directed at employees' reasoning faculties that we are not justified in assuming that the election results represented the employees' own true wishes." These were not unfair labor practice findings. They were determinations based on the policy that matters which may not be available to prove a violation, but may still be pertinent, "if extreme enough"—to borrow a Board phrase—in deciding whether an election satisfies the Board's own administrative standards.


In Economic Machinery Co., 111 NLRB 947 (1955), "the technique of calling the employees into the Employer's office individually to urge them to reject the Union," the Board held, "is, in itself, conduct calculated to interfere with their free choice in the election." The employer had privately interviewed all employees in his office. In some instances the interviews were as long as 3 hours. The Board reasoned that this was interference with the election "regardless of the non-coercive tenor of an employer's actual remarks."


… The Board reiterated the rule which consistently condemns the technique of calling all or a majority of the employees in the unit into the employer's office individually or calling on them at their homes to urge them to reject a union as their bargaining representative. Peoria Plastic Co., 117 NLRB 545 (1957); see also Hurley Co., 130 NLRB 282 (1961).


In NVF Co., 210 NLRB 663 (1974), the Board concluded that cases involving the technique of calling employees either individually or in small groups into private areas to urge them to vote against the union was not per se objectionable. Rather, each case will be considered on its facts to determine whether the election represents the employee's wishes. See also Flex Products, 280 NLRB 1117 (1986).


"The unique effectiveness of speeches addressed to employees assembled during working hours at the locus of their employment," the Board noted, "has received congressional and judicial recognition and has been substantiated by research studies." See H. W. Elson Bottling Co., 155 NLRB 714, 716 fn. 7 (1965); also NLRB v. United Aircraft Corp., 324 F.2d 128 (2d Cir. 1963), cert. denied 376 U.S. 951 (1964). It would seem that a vital factor in the Board's reasoning is that when individual employees are taken from their workplaces and subjected to antiunion propaganda at the hands of a supervisor in the privacy of a company office or in an isolated area away from other employees, there is a "likelihood that outright fear or uneasiness tinged with fear as to the consequences of unionism will be created in the mind of the employee thus singled out for special attention." Great Atlantic & Pacific Tea Co., 140 NLRB 133, 134 (1963).


The rationale for invalidating elections involving the assembly of employees is not unlike the rationale in cases involving home visitations by officials and supervisors of the employer. In the latter situation the Board has made it clear that, whether or not the remarks during such visitations were coercive in character, the technique of visiting employees at their homes to urge them to reject the union as their bargaining representative is a ground for setting aside an election. See, for example, F. N. Calderwood, Inc., 124 NLRB 1211 (1959). The crux of that rationale is in the fact that the employer has "the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews" that it conducts. Plant City Welding & Tank Co. , 119 NLRB 131, 133–134 (1957).


The Board does not use a mechanistic approach but gives full consideration to all the circumstances. Thus, where 2 days before an election, several nurses aides were appealed to for a no-vote in noncoercive terms by the employer's executive director at a meeting in the nursing director's office, this incident was held not to justify setting aside the election under the General Shoe Corp., 77 NLRB 124 (1948), "locus of managerial authority" doctrine, since the office was the regular place of work of the admissions nurse and had been used for training sessions. Three Oaks, Inc., 178 NLRB 534 (1969).


A significant exception to the rule relating to employee interviews at the plant is found in Mall Tool Co., 112 NLRB 1313 (1955). In that case, the employer spoke to about half of its employees at their workbenches. The interviews lasted no more than 3 minutes. In these circumstances, the interviews were distinguished from the Economic Machinery Co., 111 NLRB 947 (1955), type and found not to constitute a basis for upsetting the election. See also Frito Lay, Inc., 341 NLRB 515 (2004) (use of "ride-alongs"—management representatives who rode with unit drivers to discuss working conditions— not objectionable).


[79] Ruling 96-1040: Allegheny Ludlum Corporation v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, January 17, 1997. Decided 2-1 (partial dissent). http://caselaw.findlaw.com/us-dc-circuit/1279655.html


Employer "Polling" of Employees and Section 8(a)(1)


Section 7 of the Act gives all nonexempt employees "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․" 29 U.S.C. § 157 (1994). Section 8(a)(1) of the Act makes it an illegal "unfair labor practice" for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. § 158(a)(1) (1994).


In its 1967 Struksnes decision, the Board observed that an employer's "polling" of its employees regarding their pro-union or anti-union sentiment was usually both a violation of the employees' § 7 rights in itself, and a likely prelude to further and more severe such violations. See Struksnes Construction Co., 165 N.L.R.B. 1062 (1967). An employer "poll" may in itself interfere with employees' exercise of their § 7 rights because "any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights." Id. at 1062;  see also Cannon Electric Co., 151 N.L.R.B. 1465, 1470 (1965) ("Coercion by interrogation is one of the 'subtler' forms of management's interference with labor's protected rights." (quoting N.L.R.B. v. Camco, 340 F.2d 803, 804 (5th Cir.1965)));  overruled on other grounds by Resistance Technology, 280 N.L.R.B. 1004, 1986 WL 54042 (1986). An employer "poll" also may lay the groundwork for further violations of § 7 rights because "[a]n employer cannot discriminate against union adherents without first determining who they are." Id. (quoting Cannon Electric Co., 151 N.L.R.B. at 1468). The Board observed that in "innumerable cases" employer "polling" had been the "prelude" to employer discrimination against union sympathizers, and thus concluded that employer "polling" was not only a necessary precursor to discrimination but also an affirmative signal that discrimination would follow. Id;  see also Cannon Electric Co., 151 N.L.R.B. at 1468 ("The frequency of a pattern of employer conduct associating discrimination against union adherents with employer's efforts to learn the names of union activists supports the conclusion that there is a 'danger inherent' in such conduct:  a tendency toward interference with the exercise by employees of their organizational rights." (citations omitted)). …


Absent unusual circumstances, the polling of employees by an employer will be violative of Section 8(a)(1) of the [Act] unless the following safeguards are observed:  (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.


[80] Ruling 97-1335: Perdue Farms, Inc. v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, May 29, 1998. Decided 2-1. http://openjurist.org/144/f3d/830


Interrogation of Employees


Claiming that the Board erroneously applied the relevant legal standard, Perdue challenges the Board's determination that Chappell violated section 8(a)(1) by interrogating employees when he asked them if Union representatives had visited them at their homes. Interrogation of employees violates section 8(a)(1) if, under all the circumstances, it reasonably "tends to restrain, coerce, or interfere with rights guaranteed by the Act." Rossmore House, 269 N.L.R.B. 1176, 1177, 1984 WL 36297 (1984). Both the Board and the courts agree that the starting point for determining whether unlawful interrogation has occurred is the five-factor test set forth in Bourne v. NLRB, 332 F.2d 47 (2d Cir.1964):


(1) The background, i.e., is there a history of employer hostility and discrimination?

(2) The nature of the information sought, e.g. did the interrogator appear to be seeking information on which to base taking action against individual employees?

(3) The identity of the questioner, i.e., how high was he in the company hierarchy?

(4) Place and method of interrogation, e.g., was employee called from work to the boss's office? Was there an atmosphere of "unnatural formality"?

(5) Truthfulness of the reply.


Id. at 48; see also Chauffeurs, Local 633 v. NLRB, 509 F.2d 490, 494 (D.C.Cir.1974). Determining whether employee questioning violates the Act does not require strict evaluation of each factor; instead, "[t]he flexibility and deliberately broad focus of this test make clear that the Bourne criteria are not prerequisites to a finding of coercive questioning, but rather useful indicia that serve as a starting point for assessing the 'totality of the circumstance.' " Timsco Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C.Cir.1987).


Reviewing the entire record and the Board's decision and " 'recogniz[ing] the Board's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship,' " Southwire Co. v. NLRB, 820 F.2d 453, 456 (D.C.Cir.1987) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)), we think the Board properly applied the Bourne factors and that its section 8(a)(1) finding is supported by substantial evidence. Employee Willie Jackson testified that during a meeting with about fifty employees on or about May 19, Chappell asked whether "our homes and everything had been visited, you know, by the union associate." According to Jackson, he and one other man raised their hands in response. Chappell denied that the meeting ever occurred, but the ALJ discredited his testimony, credited Jackson's testimony instead, and found that Chappell had questioned employees in violation of section 8(a)(1). The ALJ said:


The setting of the interrogation was a general meeting of employees and the record does not reflect that the union sympathies of those present were known to [Perdue]. The questioner was a high official of [Perdue] who gave no assurances that by asking the question the employees would have nothing to fear. Additionally, Chappell was from the Maryland headquarters and did not have any established friendly relationship with the Alabama workers. There was no apparent legitimate reason for the question, but by seeking this information [Perdue] could learn who had been talking to the Union's organizers.


Although we agree with Perdue that the "place and method" of Chappell's questioning of employees (the fourth Bourne factor) were not particularly coercive, the other Bourne factors support the Board's finding of unlawful interrogation. Chappell came from Perdue's headquarters and served as its top human resources supervisor (factor 3). See Bourne, 332 F.2d at 48; Midwest Reg. Joint Bd., Amalgamated Clothing Workers of Am., 564 F.2d 434, 443 (D.C.Cir.1977). In his questions to employees, Chappell appeared to seek information about individual employee union sympathies (factor 2). Cf. Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C.Cir.1997) (" '[A]ny attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his [statutory] rights.' ") (quoting Struksnes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)). Perdue claims that the ALJ considered circumstances outside the Bourne factors, i.e., that Chappell "gave no assurances that by asking the question the employees would have nothing to fear," Cooking Good Div. 323 N.L.R.B. No. 50, at 5, 1997 WL 156724, but both this court and the Board have found that failure to give such assurances is relevant to the unlawful interrogation determination. See Midwest Reg. Joint Bd., 564 F.2d at 443; Fiber Glass Sys., Inc., 298 N.L.R.B. 504, 504-05, 1990 WL 123341 (1990).


Challenging the ALJ's finding that Chappell had no legitimate reason to interrogate employees, Perdue claims that because it had received complaints that Union organizers were representing themselves as Perdue agents when visiting employees in their homes, it needed to know the answers to Chappell's questions to gauge the reach of the Union's misrepresentations. But Perdue received the complaints over a month before the Union filed its election petition, the company immediately met with employees to warn them that Union organizers representing themselves as Perdue agents were reportedly visiting employee homes, and the meeting at which Chappell questioned employees occurred over two months later, a week after the election had been scheduled. Because Perdue never claimed that it was still receiving complaints at that time, we think the record supports the Board's conclusion that Chappell had no legitimate reason for asking the question.


[81] Ruling 02-1278: Shamrock Foods Company v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, October 21, 2003. Decided 3-0. http://openjurist.org/…


We next consider the NLRB's determination that Shamrock's night-shift manager, Bud Shalley, unlawfully interrogated warehouse worker David Trujillo about the union's organizing efforts. Trujillo testified that on or about June 4, 1998, in the midst of the organizing campaign, Shalley approached him while he was sitting alone in a warehouse office completing paperwork. After a few moments of small talk, Shalley asked Trujillo if he had heard anything about the union and whether D'Anella had asked Trujillo to sign a union card. When Trujillo answered that he had "not yet" been asked, Shalley walked out of the office. J.A. at 83. A few days later, on June 9, Shalley again approached Trujillo in the warehouse office. This time, Shalley said: "I can't believe Vinnie [D'Anella] hasn't come to you yet about the union." When that remark failed to evoke a response, Shalley followed up with: "Well, if you find out that Vinnie's trying to hand out union cards, let me know." Id. at 83-84. Trujillo testified that he promised Shalley that he would keep his "eyes open." Id. at 84; see Shamrock Foods Co., 337 N.L.R.B. No. 138, at 4 (ALJ Op.).


Although Shalley denied that either conversation took place, the ALJ [Administrative Law Judge] credited Trujillo's account and concluded that the conversations, as described by Trujillo, violated section 8(a)(1). The Board affirmed. In its petition for review, Shamrock contends both that the conversations never took place, and that even if they did, they did not violate the NLRA. …


We first address Shamrock's fallback argument that even if the conversations did occur, they were not unlawful. This argument requires little discussion. The questioning of an employee about union activities or sympathies constitutes unlawful interrogation "if, under all the circumstances, it reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act." Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C.Cir. 1998) (internal quotation marks omitted). …


For the foregoing reasons, we deny Shamrock's petition for review and grant the Board's cross-application for enforcement of its order.


[82] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Page 1215: "The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by … (2) coercively interrogating employees about their union sympathies…."


Pages 1228, 1258-1259:


STATEMENT OF THE CASE


JAMES M. KENNEDY, Administrative Law Judge. Maitre d'. This case was tried before me in Yakima, Washington, over 53 hearing days during 1998 and 1999, on an amended consolidated complaint issued by the Regional Director for Region 19 of the National Labor Relations Board (the Board) on October 9, 1998. …


Employees are entitled to either express their opinions about labor unions and unionization and they are equally entitled to keep their opinions to themselves. It is entirely inappropriate for an employer to surreptitiously dig into an employee's heart to determine his or her union sentiments. … Employees should never be placed in a situation where they reveal their union sentiments, even if that sentiment is revealed by inaction.


[83] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 14: "General Rule – Employees have the right to distribute union literature in nonworking areas on company property during nonworking time…."


[84] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Page 1215: "The judge found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by (1) telling employees that they could not engage in union activity on company property…."


[85] Ruling 502 U.S. 527: Lechmere, Inc. v. NLRB. U.S. Supreme Court, January 27, 1992. Decided 6-3. http://supreme.justia.com/cases/federal/us/502/527/case.html


Thus, while "[n]o restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline," 351 U. S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U. S. 793, 803 (1945)), "no such obligation is owed nonemployee organizers," 351 U. S., at 113.


[86] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Pages 1218-1220:


Contrary to the judge and our dissenting colleague, we find that the Respondent did not violate Section 8(a)(3) and (1) of the Act by: (1) warning employees and demoting employee Pamela Smith for violating the Respondent's no-solicitation rule; and (2) by discharging employee Ana Guzman for work-related misconduct.


A. Discipline for Allegedly Violating No-solicitation Rule


The Respondent maintains a no-solicitation rule for employees which states:


Approaching fellow employees in the work place regarding activities, organizations or causes, regardless of how worthwhile, important or benevolent, can create unnecessary apprehension and pressures for fellow employees. Such conduct is inappropriate and unnecessary. . . . No employee shall solicit or promote support for any cause or organization during his or her working time or during the working time of the employee or employees at whom such activity is directed.18


The General Counsel concedes that this rule, which was in effect prior to the union organizing campaign, is valid on its face. He argues, instead, that the Respondent discriminatorily enforced the rule in violation of Section 8(a)(3) and (1) by applying it to discipline employees Pam Smith, Maria Andrade, Rosa Salas, and Sonia Abundiz for discussing the Union while working in 1997.


On September 4, Smith's duties included delivering an electric motor to coworker Clayton Johnson at the Union Gap plant. While delivering the motor to the plant, Smith, an active union organizer, initiated a conversation, which included references to the Union, with employee Gabriel Villarreal while she waited for Johnson. After he arrived, Johnson removed the motor from Smith's car and, accompanied by Smith, brought it inside the plant. Johnson testified that as they walked to the plant, Smith asked him how he felt about the Union and told him that a union would mean better wages and benefits. Although Johnson indicated he did not support the Union, Smith continued to press him about it. Smith later continued her conversation about the Union with Villarreal during an approximately 15-minute trip to the local hardware store to do an errand for Johnson. Smith does not deny that her conversations with Johnson and Villarreal occurred during working time and were intended to solicit and promote support for the Union. Johnson reported Smith's conversations to the Respondent.


The Respondent also received complaints from five other employees that prounion employees Andrade, Salas, and S. Abundiz were "harassing" them with talk about the Union and were constantly pressuring them to attend meetings and to support the Union. One employee testified that she asked her supervisor to move her workstation away from Abundiz to escape the harassment. Andrade and Salas did not deny that they solicited support for the Union during worktime. Abundiz did not testify.


On September 10, the Respondent issued Smith a warning for "soliciting the union during work hours at the Union Gap plant. It is a violation of company policy to solicit during work hours." The warning also stated that Smith would be dismissed for a further incident of soliciting for the Union during working hours. The Respondent also removed Smith from her parts runner position, a demotion resulting in loss of premium pay. On October 23, the Respondent issued written warnings to Andrade, Salas, and S. Abundiz about "[c]omplaints from several employees for soliciting the Union during work time."


The judge found that these warnings and the demotion were unlawful because the employees involved did no more than talk about the Union while they were working and that this conduct did not amount to "solicit[ing] or promot[ing] support for any cause or organization" in breach of the Respondent's no-solicitation rule. The judge also stressed that there was no showing that these conversations interfered with the work of Smith, Andrade, Salas, S. Abundiz or any employee. Relying on Jennie-O Foods, 301 NLRB 305 (1991), the judge further concluded that, in effect, the Respondent "was imposing a no union talk rule" against these employees, which is a violation of Section 8(a)(1).


We disagree with the judge's analysis. The General Counsel concedes that the Respondent's rule is valid on its face. The rule, on its face, prohibits solicitation and the promotion of support. These terms are to be understood in terms of the overall purpose of the rule. That purpose is readily apparent from the opening sentence of the rule. That is, the Respondent is concerned about employees "approaching fellow employees in the work place regarding activities, organizations, or causes." Such "can create unnecessary apprehension and pressure for fellow employees." Accordingly, such conduct is "inappropriate." The conduct involved here was of that kind and, thus, clearly fell within the ambit of the rule. Accordingly, without resolving the semantic question of whether the words "solicit" or "promote," standing alone, would cover the conduct here, the conduct here clearly fell within the ambit of the rule.


Similarly, the fact that the Respondent tolerates "talk" in the workplace does not warrant a contrary result. It is one thing, for example, to "talk" to fellow employees about Sunday's football game. It is quite another to try to "persuade" fellow employees to support a cause. The former is allowed. The latter is not, irrespective of whether the cause is the union or something else.19


Finally, the fact that there was no actual interference with work does not render unlawful the rule or its application. The Board has found that rules restricting solicitation activity during work-time are permitted because of the employer's right to prevent interference with work. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). There is, however, no requirement that actual interference be shown to justify the rule.


The conduct for which Smith, Andrade, Salas, and S. Abundiz were disciplined was encompassed by the Respondent's valid rule. Thus, the Respondent clearly permits employees to talk among themselves while working, without restriction as to subject matter, so long as their personal discussions do not rise to the level of solicitation or promotion within the meaning of the rule. Here, the conduct of these four employees exceeded discussion and was proscribed under the Respondent's rule. Pam Smith did not merely talk to Johnson and Villareal about the Union—she persistently urged them to support the Union. Andrade, Salas, and S. Abundiz also did not simply talk to their coworkers about the Union—they constantly pressured them to attend meetings and to support the Union. This conduct is precisely that which the Respondent intended by proscribing promotion and solicitation. Thus, based on a concededly valid rule, the Respondent lawfully prohibited employees from soliciting or promoting support for a cause during working time.


Accordingly, we shall dismiss the 8(a)(3) and (1) allegations based on these four warnings and Smith's demotion.


[87] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Pages 1224-1225::


MEMBER WALSH, dissenting in part.


The majority erroneously dismisses the complaint allegations that the Respondent violated the Act by disciplining four employees for talking about the Union….


Pam Smith, a long-term employee of the Respondent, was a particularly active union supporter. On September 4, 1997,3 she spoke to two employees during working time about the advantages of unionization, but she did not present them with a card or petition to sign. The judge specifically found that "her efforts were simply talk." The judge also found that the "Respondent's employees . . . speak to each other frequently about all sorts of things and have never been disciplined for doing so." Nevertheless, on September 11, the Respondent issued Smith the following warning: "Pam was soliciting the union during work hours at the Union Gap plant. It is a violation of company policy to solicit during work hours. Future solicitation during work hours will result in dismissal."4 Simultaneously, Smith was demoted and suffered a loss in pay.


On October 23, the Respondent issued similar warnings to prounion employees Maria Andrade, Rosa Salas, and Sonia Abundiz, allegedly because it had received reports from other employees about "harassment." The warnings threatened Andrade, Salas, and Abundiz with discharge if a similar occurrence were to take place. The warnings are identical and state: "Complaints from several employees for soliciting the Union during worktime." The judge found, however, that Andrade, Salas, and Abundiz did not solicit their coworkers to sign any documents, but merely talked to them about the Union. The judge also found that the Respondent made "no effort . . . to determine the actual facts," but summarily "concluded that [the employees'] talking about the Union qualified as harassment."


B. Analysis


As the judge recognized, an employer violates the Act when it prohibits talking about the union during work-time while permitting discussions about any other subject. Jennie-O Foods, 301 NLRB 305, 316 (1991).


That is precisely what occurred here. Although the Respondent permitted talking on the job about a wide variety of subjects unrelated to work, it discriminatorily singled out the four employees in question for discipline because they spoke in favor of the Union. Significantly, the four employees did not engage in "soliciting," as the them. Under established precedent, "talking about a union" is not the same thing as "solicitation for a union." W. W. Grainger, Inc., 229 NLRB 161, 166 (1977), enfd. 582 F.2d 1118 (7th Cir. 1978). ' "Solicitation' for a union usually means asking someone to join the union by signing his name to an authorization card." Id. The judge specifically found [phrase deleted] that the four employees' conduct did not rise to the level of "solicitation" in violation of the Respondent's no-solicitation rule.


The majority concedes that the Respondent could not discipline the employees for merely talking about the Union. And the majority stops short of finding that the employees engaged in prohibited "soliciting." Nevertheless, the majority concludes that the discipline was lawful. The majority reasons that the employees' conduct fell generally within "the ambit of the rule," which prohibits not only "soliciting," but also "promoting" a cause. I disagree.


As set forth above, Board law is clear that an employer cannot prohibit employees from simply talking about a union, if it allows talking about other subjects. Despite the fact that the General Counsel has not challenged the "promoting" a cause portion of the rule as being overbroad in violation of Section 8(a)(1), it is improper, in my view, to allow the Respondent to enforce an otherwise clearly unlawful prohibition based on such highly ambiguous language. Rather than reach such a result, I would simply read the Respondent's rule narrowly, as prohibiting solicitation, rather than prohibiting simply talking about the Union. Since the judge correctly found that the employees did not engage in solicitation in violation of the rule, it follows that the Respondent violated Section 8(a)(3) and (1) when it issued Smith a warning and demoted her, and when it issued warnings to Andrade, Salas, and Abundiz, all because of their protected activities on behalf of the Union.


[88] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 15:


The Employer generally may prohibit distribution of Union literature on its premises by Non-Employee Union organizers, except in rare circumstances. The threshold test, stated the Supreme Court, is whether "the location of a plant and the living quarters of the Employees place the Employees beyond the reach of reasonable union efforts to communicate with them."103 The Court in Lechmere emphasized that this exception to the Employer's right to deny access to Non- Employees is narrow. The Court identified (1) Isolated Logging Camps, (2) Mining Camps, and (3) Mountain Resorts as "classic examples" of situations where the Employer may have to allow Non-Employee organizers onto its property.104


103 See St. Luke's Hosp., 300 NLRB 836 (1990); Tri-County Medical Center, Inc.; 222 NLRB 1089 (1976).

104 Lechmere, Inc. v. NLRB, 502 US 527 (1992).


[89] Ruling 502 U.S. 527: Lechmere, Inc. v. NLRB. U.S. Supreme Court, January 27, 1992. Decided 6-3. http://supreme.justia.com/cases/federal/us/502/527/case.html


The National Labor Relations Act (NLRA) guarantees employees "the right to self-organization, to form, join, or assist labor organizations," § 7, and makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees" in the exercise of their § 7 rights, § 8(a)(1). Petitioner Lechmere, Inc., owns and operates a retail store located in a shopping plaza in a large metropolitan area. Lechmere is also part owner of the plaza's parking lot, which is separated from a public highway by a 46-foot-wide grassy strip, almost all of which is public property. In a campaign to organize Lechmere employees, nonemployee union organizers placed handbills on the windshields of cars parked in the employees' part of the parking lot. After Lechmere denied the organizers access to the lot, they distributed handbills and picketed from the grassy strip. In addition, they were able to contact directly some 20% of the employees. The union filed an unfair labor practice charge with respondent National Labor Relations Board (Board), alleging that Lechmere had violated the NLRA by barring the organizers from its property. An Administrative Law Judge ruled in the union's favor, recommending that Lechmere, inter alia, be ordered to cease and desist from barring the organizers from the parking lot. The Board affirmed, relying on its ruling in Jean Country, 291 N. L. R. B. 11, that in all access cases the Board should balance (1) the degree of impairment of the § 7 right if access is denied, against (2) the degree of impairment of the private property right if access is granted, taking into consideration (3) the availability of reasonably effective alternative means of exercising the § 7 right. Id., at 14. The Court of Appeals enforced the Board's order.


Held: Lechmere did not commit an unfair labor practice by barring nonemployee union organizers from its property. Pp. 531-541.


(a) By its plain terms, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. Thus, as a rule, an employer cannot be compelled to allow nonemployee organizers onto his property. NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 113. Babcock's holding was neither repudiated nor modified by this Court's decisions in Central Hardware Co. v. NLRB, 407 U. S. 539, and Hudgens v. NLRB, 424 U. S. 507. See also Sears, Roebuck & Co. v. Carpenters, 436.


(c) The facts in this case do not justify application of Babcock's inaccessibility exception. Because Lechmere's employees do not reside on its property, they are presumptively not "beyond the reach" of the union's message. Nor does the fact that they live in a large metropolitan area render them "inaccessible." Because the union failed to establish the existence of any "unique obstacles" that frustrated access to Lechmere's employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property. Pp.539-541. …


Babcock arose out of union attempts to organize employees at a factory located on an isolated 100-acre tract. The company had a policy against solicitation and distribution of literature on its property, which it enforced against all groups. About 40% of the company's employees lived in a town of some 21,000 persons near the factory; the remainder were scattered over a 30-mile radius. Almost all employees drove to work in private cars and parked in a company lot that adjoined the fenced-in plant area. The parking lot could be reached only by a 100-yard-long driveway connecting it to a public highway. This driveway was mostly on company-owned land, except where it crossed a 31-foot-wide public right-of-way adjoining the highway. Union organizers attempted to distribute literature from this right-of-way. The union also secured the names and addresses of some 100 employees (20% of the total) and sent them three mailings. Still other employees were contacted by telephone or home visit.


The union successfully challenged the company's refusal to allow nonemployee organizers onto its property before the Board. While acknowledging that there were alternative, non-trespassory means whereby the union could communicate with employees, the Board held that contact at the workplace was preferable. The Babcock & Wilcox Co., 109 NLRB. 485, 493-494 (1954). "[T]he right to distribute is not absolute, but must be accommodated to the circumstances. Where it is impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer's premises, distribution on a nonworking area, such as the parking lot and the walkways between the parking lot and the gate, may be warranted." Id., at 493. Concluding that traffic on the highway made it unsafe for the union organizers to distribute leaflets from the right-of-way and that contacts through the mails, on the streets, at employees' homes, and over the telephone would be ineffective, the Board ordered the company to allow the organizers to distribute literature on the company's parking lot and exterior walkways. Id., at 486-487.


[90] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 322:


The Peerless Plywood rule, applicable to employers and unions alike, forbids election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for an election. Violation of this prohibition is a ground for setting aside the election whenever valid objections are filed. Peerless Plywood Co., 107 NLRB 427, 429 (1954).


"Such a speech," said the Board in its rationale, "because of its timing, tends to create a mass psychology which overrides arguments made through other campaign media and gives an unfair advantage to the party, whether employer or union, who in this manner obtains the last most telling word." The Board adverted to its longstanding rule prohibiting electioneering by either party at or near the polling place. "We have previously prescribed space limitations," said the Board, "now we prescribe time limitations as well."


This rule does not interfere with the rights of unions and employers to circulate campaign literature on or off the premises at any time prior to an election (see General Electric Co., 161 NLRB 618 (1966), and Andel Jewelry Corp., 326 NLRB 507 (1998)), nor does it prohibit the use of any other legitimate campaign propaganda or media. It forbids speeches, whether coercive or not (see Excelsior Laundry Co., 186 NLRB 914 (1970)), during the prescribed 24-hour period on company time and property, but it does not "prohibit an employer from making (without granting the union an opportunity to reply) campaign speeches on company time prior to the 24-hour period, provided, of course, such speeches are not otherwise violative of Section 8(a)(1)." The Board added that the rule does not prohibit employers and unions from making campaign speeches on or off company premises during the 24-hour period "if employee attendance is voluntary and on the employees' own time." Peerless Plywood Co., supra at 430. See also Nebraska Consolidated Mills, 165 NLRB 639 (1967).


[91] Report: "An Outline of Law and Procedure in Representation Cases." By John E. Higgins, Jr. and others. National Labor Relations Board, August 2012. http://www.nlrb.gov/…


Page 331:


In Randell Warehouse of Arizona, 328 NLRB 1034 (1999), the Board found that union videotaping of the distribution of literature to employees as they accepted or rejected the literature is not objectionable. In doing, so, a divided Board overruled Pepsi-Cola Bottling Co., 289 NLRB 736 (1988), and reaffirmed Mike Yurosek & Son, 292 NLRB 1074 (1989). Mike Yurosek was a case in which the photographing was accompanied by statements that "could reasonably put employees in fear that the pictures would be used for future reprisals."


Randell Warehouse was decided by the Board after oral argument with a second case that was settled prior to decision. That second case dealt with the issue of employer videotaping. The Board's Randell decision includes the views of the minority and concurring Members on the majority holding that it would make a distinction between union and employer videotaping.


See also Nu Skin International, 307 NLRB 223 (1992), in which photographing employees attending the union's picnic luncheon was not found to be objectionable.


In Enterprise Leasing Co. – Southeast LLC, 357 NLRB No. 159 (2011), a Board majority refused to set aside union election victory where the union solicited employees to have their photographs appear in campaign literature and that literature then included the picture of one employee who did not agree. The majority decision distinguished its holding from the Board's decision in Allegheny Ludlum Corp., 333 NLRB 734 (2001), which held that the employer unlawfully polled employees to participate in a campaign video. The majority and dissent disagreed over whether Allegheny Ludlum should apply to unions as well as employers.


[92] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 16:


The Employer may not conduct surveillance of Employees engaging in Union activities regardless of whether (i) the Employees know of the surveillance or (ii) the surveillance is conducted by supervisors either encouraged by the Employer or acting on their own. The Employer is also prohibited from creating the impression among Employees that it is engaged in surveillance. Surveillance includes unjustified recording, photographing, or videotaping of protected activity.


[93] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Pages 1216-1218:


As more fully explained below, we agree with the judge that the Respondent did not violate Section 8(a)(1) [of the National Labor Relations Act] by videotaping employees during a union rally. …


On the morning of August 12, Plath met with Warehouse Manager Tommy Hanses and Human Resources Manager Lupe Martinez. Plath told them about the Union's planned rally and expressed to them his concerns about the safety of employees and their cars; the safety of the Respondent's packing equipment; and possible incidents of violence and trespassing.13 Plath asked Martinez to have a video camera ready to videotape the rally so as to preserve on tape evidence of any damage done to vehicles and packing equipment on the Respondent's premises.


In mid-afternoon on August 12, Teamsters and AFL– CIO officials led a march of 50 to 60 people from the Union's train station office to the Respondent's main office, where they set up a large table, intended to serve as a symbolic bargaining table. A union official estimated that by the time the group arrived at the Respondent's office, there were over 100 demonstrators. The rally leaders sat at the table with the crowd around them chanting for Plath to come out of the building, which he did for a short time.


Martinez recorded about 19 minutes of videotape. The tape shows that demonstrators in the street significantly affected traffic. Traffic slowed to a crawl as some drivers attempted to negotiate through the crowd, while other drivers made U-turns to avoid the crowd. The "bargaining table" and some benches in the street blocked traffic and there were demonstrators sitting on cars. The tape also shows that, at one point, a large number of demonstrators entered the Respondent's office as a group. Martinez testified that he recognized only 12 of the demonstrators as being employees of the Respondent, while a union official testified that she recognized about 40 employees. Either way, a majority of the approximately 100 demonstrators appeared not to be employees of the Respondent. Three employees eventually made their way into the office with a written demand for recognition, which the Respondent rejected.


The principles the Board applies to videotaping cases were fully set out in National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998), where the Board stated:


[T]he fundamental principles governing employer surveillance of protected employee activity are set forth in F. W. Woolworth Co., 310 NLRB 1197 (1993). The Board in Woolworth reaffirmed the principle that an employer's mere observation of open, public union activity on or near its property does not constitute unlawful surveillance. Photographing and videotaping such activity clearly constitute more than mere observation, however, because such pictorial record keeping tends to create fear among employees of future reprisals. The Board in Woolworth reaffirmed the principle that photographing in the mere belief that something might happen does not justify the employer's conduct when balanced against the tendency of that conduct to interfere with employees' right to engage in concerted activity. . . . Rather, the Board requires an employer engaging in such photographing or videotaping to demonstrate that it had a reasonable basis to have anticipated misconduct by the employees. ''[T]he Board may properly require a company to provide a solid justification for its resort to anticipatory photographing. . . . The inquiry is whether the photographing or videotaping has a reasonable tendency to interfere with protected activity under the circumstances in each case." [Citations omitted.]


The judge correctly followed this precedent and examined whether the Respondent had demonstrated sufficient justification for its videotaping of the rally. The judge found that at the time Path made his decision, he knew that the Union was planning a high-profile event with a group of people, including high-ranking union officials from out of town, who would be marching from the train station to hold a public demonstration at the Respondent's office. Plath did not know the purpose of the march, or when it would start, or whether the Union could control the crowd. What Plath did know, as found by the judge, was that he had to be concerned about the safety of both the Respondent's employees and the Respondent's equipment. Faced with these circumstances, and concerned about a recurrence of trespassing on the property, Plath asked Martinez to videotape the upcoming rally to gather and preserve evidence. Finding the Respondent's concerns with trespassing and safety issues to be reasonable, the judge properly found no violation of the Act based on the Respondent's videotaping.14


Our dissenting colleague would find a violation because, in his view, the Respondent failed to establish proper justification for its decision to videotape the Union's rally. According to the dissent, the Respondent had only a "mere belief" or "sheer suspicion" that unprotected activity might occur at the rally because Plath had minimal information about the rally; the rally occurred on public property; and the videotaping began without any union or employee misconduct occurring that day or on prior occasions. We disagree with the dissent on all three points.


First, given the available information, Plath's reason for deciding to videotape was based on more than what the Board refers to as a "mere" belief that something might happen. At the time he made the decision, Plath knew that there was going to be a demonstration possibly involving a large number of people in front of the Respondent's office. Plath knew that officials from the AFL–CIO had come into town from Washington, D.C., to take part in the demonstration. Plath could easily visualize the consequences of such a high-profile gathering, and he could predict that he would have safety, property, and security issues to face.


Second, Plath certainly had every reason to expect that there would be, at the very least, trespassing by union supporters and organizers on the Respondent's property, given the close proximity of the public areas. Unlike Robert Orr-Sysco Food Services, 334 NLRB 977, 978 (2001), where the Board found no proper justification for employer videotaping of employees' handbilling, the public property in the present case literally began at the respondent's doorstep, rather than "two turns away from the [respondent's] driveway" as in Robert Orr-Sysco Food Services. 334 NLRB at 978. Furthermore, given prior incidents of trespassing on the Respondent's property, which had led Plath to contact the police, it was prudent of Plath to plan on documenting the Union's rally.


Finally, the Respondent, like the employer in Saia, supra, had legitimate safety and trespassing concerns which justified its videotaping of the demonstration. and its videotaping was consistent with the Board's Rule that the taking of photographs or videotaping to document trespassory activities for the purpose of making a claim of trespass is lawful.15 In Saia Motor Freight Line, supra, the Board found that the employer was justified in videotaping handbilling activities, which occurred on the employer's property in its driveway. The Board accepted the employer's concern about safety and potential negligence liability as a legitimate justification for photographing employees engaged in handbilling. The Board in Saia also pointed out that the employer began its videotaping after the handbilling began and after becoming dissatisfied with police efforts to stop handbillers' interference with traffic entering its facility. It does not follow, however, that the Board requires that "solid justification" can be established only after specific instances of anticipated problems have occurred. The Board's rules regarding picture-taking of protected activity do not mean that an employer is precluded from asserting a legitimate concern simply because no disruption has yet occurred. If that were the case, there would be no reason for the Board to require "solid justification for its resort to anticipatory photographing." National Steel & Shipbuilding , supra. As the Board has held, in a different context, "The pedestrian need not wait to be struck before leaping for the curb." Betts Cadillac Olds, Inc., 96 NLRB 268, 286 (1951).


Thus, we conclude, in agreement with the judge, that the Respondent had a reasonable basis to expect misconduct based upon the circumstances discussed above. Accordingly, we conclude that the Respondent's videotaping of the union rally did not violate the Act.16 We shall dismiss this allegation.


[94] Decision 343 NLRB 125: Washington Fruit and Produce Company and International Brotherhood of Teamsters, AFL–CIO. National Labor Relations Board, August 26, 2011. Decided 3-0 with 1 partial dissent. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580022ec9


Pages 1224, 1226:


MEMBER WALSH, dissenting in part.


The applicable principles are well established. Absent proper justification, an employer's videotaping of employees engaged in protected activities violates Section 8(a)(1) because "it has a tendency to intimidate." F. W. Woolworth, 310 NLRB 1197 (1993). An employer must "provide a solid justification for its resort to anticipatory [videotaping]." NLRB v. Colonial Haven Nursing Home, 542 F.2d 691, 701 (7th Cir. 1976). The mere belief that "something 'might' happen does not justify [videotaping] when balanced against the tendency of that conduct to interfere with the employees' right to engage in concerted activity." Flambeau Plastics Corp., 167 NLRB 735, 743 (1967), enfd. 401 F.2d 128, 136 (7th Cir. 1968), cert. denied 393 U.S. 1019 (1969).


In the instant case, the issue is whether the information Plath received from Gempler provided "solid justification" for Plath's decision to videotape the rally. The judge made the following findings about that conversation:


• Plath could not determine much from what Gempler had said. He did discern that it was going to be a Teamster operation.

• [T]he information which was relayed to Plath was minimal and came only the night before.

• All [Plath] had heard was that a lot of people would be marching on his plant.

• Plath was "mostly in the dark."


This falls far short of the required showing. It is no answer to say, as the majority does, that Plath was concerned about safety and trespassing issues. Providing a "solid justification" requires more than simply suspecting that unprotected activity might occur.6 The employer must "demonstrate that it had a reasonable basis to have anticipated misconduct by the employees." National Steel & Shipbuilding Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998). Nothing that Gempler said would support a finding that Plath had a reasonable basis for anticipating misconduct during the rally. Significantly, there is no evidence of Union or employee misconduct on prior occasions.


[95] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 19:


The NLRB may order an Employer to recognize and bargain with a Union where the Employer, among other things, has committed unfair labor practices ("ULPs") that have made a fair election unlikely or has undermined the Unions majority and caused an election to be set aside.116 In Gissel Packing Company, the Supreme Court identified three separate categories of ULPs that it would consider in deciding whether a bargaining order would be an appropriate remedy. The first category of cases, known as Gissel-I cases, involves situations in which the Employer has committed outrageous or pervasive ULPs that would make it impossible to hold a fair election. The court determined that in these exceptional cases a bargaining order is the appropriate remedy "without need of inquiry into majority status."117 The Supreme Court did not, however, specifically endorse the idea of non-majority bargaining orders. The second category of cases, known as Gissel-II cases, involves "less extraordinary cases marked by less pervasive practices which nonetheless have the tendency to undermine majority strength and impede the election processes."118 The Supreme Court approved this use of bargaining orders but held that a bargaining order is justified only where there is also a showing that at some point the Union had the support of the majority of Employees in the appropriate unit. The Court counseled the Board to "take into consideration the extensiveness of an Employer's unfair practices" in terms of their past effect upon election conditions and the likelihood of their recurrence "in the future" in determining whether a bargaining order is an appropriate remedy.119 Finally, the Supreme Court identified a third category of cases, Gissel-III cases, involving minor or less extensive ULPs that have only a minimal impact on the election machinery and do not support the issuance of a bargaining order.


Despite Gissel's dictum regarding the issuance of bargaining orders without proof that the Union ever obtained majority status (Gissel-I cases), the Board did not issue any bargaining orders under these circumstances until 1981. In United Dairy Farmers Cooperative Association120 and Connair Corp.121 a divided Board issued bargaining orders even though the Unions had never demonstrated majority support. In 1984, however, the Board reexamined the issue of Gissel-I bargain orders in Gourmet Foods, Inc.122 The Board concluded that a remedial bargaining order is completely unwarranted if the Union lacks majority support. Specifically, the Board found that the issuance of a bargaining order without any evidence that the Union ever had the support of a majority of the affected Employees contravened the principles embodied in the Act. Although the decision has been questioned in recent years, the Board continues to follow Gourmet Foods.


Page 24:


If the Regional Director or Board, as appropriate, invalidates an election based on meritorious objections, the usual remedy is a rerun election.154 The Board, however, has authority to grant a so-called Gissell or remedial bargaining order, in lieu of an election or rerun election, where the union had obtained majority support prior to the scheduled election and the Employer's ULPs are found sufficiently serious to impede a fair election.155 The Regional Director has discretion as to the timing and other details of the rerun election.


[96] U.S. Code Title 29, Chapter 7, Subchapter II, Section 160: "Prevention of unfair labor practices." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/160


(a) Powers of Board generally

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. …


(c) Reduction of testimony to writing; findings and orders of Board

The testimony taken by such member, agent, or agency or the Board shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him: And provided further, That in determining whether a complaint shall issue alleging a violation of subsection (a)(1) or (a)(2) of section 158 of this title, and in deciding such cases, the same regulations and rules of decision shall apply irrespective of whether or not the labor organization affected is affiliated with a labor organization national or international in scope. Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order. If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause. In case the evidence is presented before a member of the Board, or before an administrative law judge or judges thereof, such member, or such judge or judges as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed.


[97] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 38:


• Acting on the results of professional staff investigations, which produced a reasonable cause to believe unfair labor practices had been committed, Regional Offices of the NLRB issued 1,272 complaints, setting the cases for hearing


• A 92.8 percent settlement rate was achieved in the Regional Offices in meritorious ULP cases


• The Regional Offices won 85.7 percent of Board and ALJ ULP and Compliance decisions in whole or part in FY 2013


• A total of $16,245,665 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines with 1,352 employees offered reinstatement


[98] U.S. Code Title 29, Chapter 7, Subchapter II, Section 162: "Offenses and penalties." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/162


"Any person who shall willfully resist, prevent, impede, or interfere with any member of the Board or any of its agents or agencies in the performance of duties pursuant to this subchapter shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both."


[99] Decision 333 NLRB 105: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4-0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. http://mynlrb.nlrb.gov/link/document.aspx/09031d45800c0be3


Page 720: "Although majority status is pivotal to determining employers' statutory duties, the Act does not specify how a union's majority support must be determined. The only provisions that bear on the issue of determining majority status are the provisions for representation and decertification elections found in Section 9(c)."


[100] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees

(i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.


[101] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 13: "The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the Board."


[102] Web page: "How to Organize a Union." Communication Workers of America. Accessed June 25, 2014 at http://www.cwa-union.org/pages/how_to_organize_a_union


"How you and your co-workers decide whether you want a union depends on where you work. At most private employers, workers make the choice through elections overseen by the National Labor Relations Board. Your get your union if a majority of the workers voting in the election vote for the union."


[103] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"In addition to NLRB-conducted elections, federal law provides employees a second path to choose a representative: They may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means. These agreements are made outside the NLRB process."


[104] Decision 351 NLRB 28: Dana Corp. National Labor Relations Board, September 29, 2007. http://www.nlrb.gov/…


Page 436: "We do not question the legality of voluntary recognition agreements based on a union's showing of majority support. Voluntary recognition itself predates the National Labor Relations Act and is undisputedly lawful under it."


[105] Dissent 351 NLRB 28: Dana Corp. National Labor Relations Board, September 29, 2007. http://www.nlrb.gov/…


Page 445:


Under the Act, an election is not the exclusive means of determining majority status. "Almost from the inception of the Act . . . it was recognized that a union did not have to be certified as the winner of a Board election to invoke a bargaining obligation . . . ." NLRB v. Gissel Packing Co., 395 U.S. 575, 596–597 (1969). An employer's duty to bargain under Section 8(a)(5) of the Act is subject, not to Section 9(c), which deals with elections, but to Section 9(a), which states that a representative "designated or selected" by the majority of employees in a unit shall be the exclusive bargaining representative.


[106] Decision 357 NLRB 72: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d458060afd7


Page 3:


Voluntary recognition must be based on evidence of majority support for representation. Absent majority support, voluntary recognition is unlawful. …


The evidence of majority support that must underlie voluntary recognition may take many forms. The Dana majority referred to voluntary recognition as "card-based recognition" … but that is an inaccurate or, at least, a drastically underinclusive characterization.5 Voluntary recognition may be, and has been, based on evidence of majority support as informal as employees walking into the owner's office and stating they wish to be represented by a union … and as formal as a secret-ballot election conducted by a third party such as the American Arbitration Association….


Clear evidence of Congress' intentions concerning the relationship between voluntary recognition and Board-supervised elections is contained in Section 9(c)(1)(A)(i) of the Act. In that section, Congress provided that employees could file a petition for an election, alleging that a substantial number of employees wish to be represented and "that their employer declines to recognize their representative." That language makes unmistakably clear that Congress recognized the practice of voluntary recognition and strongly suggests that Congress believed Board-supervised elections were necessary only when an employer had declined to recognize its employees' chosen representative.


[107] Report: "Trends in Union Corporate Campaigns." By Jarol B. Manheim (George Washington University). U.S. Chamber of Commerce, 2005. https://www.uschamber.com/…


Page 5: "To date, unions have waged nearly 300 campaigns against employers, primarily, though not exclusively, to facilitate organizing. … Typically, the role of the corporate campaign today is to force management to accede to union demands for 'card check and neutrality'…."


[108] Report: "Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks." By Gerald Mayer. Congressional Research Service, April 2, 2007. http://digitalcommons.ilr.cornell.edu/…


Page 12:


In general, under a neutrality agreement, an employer agrees to remain neutral during a union organizing campaign. The employer may agree not to attack or criticize the union, while the union may agree not to attack or criticize the employer. The agreement may allow managers to answer questions or provide factual information to employees. A neutrality agreement may give a union access to company property to meet with employees and distribute literature. …


Corporate Campaigns. To gain an agreement from an employer for a card check campaign — possibly combined with a neutrality agreement — unions sometimes engage in 'corporate campaigns.' … A union may engage in a corporate campaign to achieve other objectives, e.g., a contract agreement. …


[109] Article: "Supreme Court to review union corporate campaign tactic: are neutrality agreements lawful?" By Bradford L. Livingston. Lexology, June 24, 2013. http://www.lexology.com/…


The ultimate goal of a corporate campaign, however, is usually to get the employer to remain neutral – in other words, to get the employer to agree not to contest the union's efforts to organize employees, or to exercise its free speech rights under NLRA Section 8(c) – as a tradeoff for the union stopping the corporate campaign. With a neutrality agreement, unions are typically given access to the workplace and employee contact details, and the employer often agrees to recognize and bargain with the union once it has been able to convince a majority of the employees to sign authorization cards (called card check recognition) – without any secret ballot NLRB election.


[110] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A-F). Edited by Eric Arnesen. Routledge, 2007.


Page 2: "A corporate campaign is a mobilization of the labor movement and the community to tarnish a corporation's image and to inflict serious economic damage on the company to pressure management to negotiate a fair contract."


[111] Article: "The Pressure is On: Organizing Without the NLRB." By Joe Crump (Secretary-Treasurer of United Food and Commercial Workers Local 951, Grand Rapids, Michigan). Labor Research Review, 1991. http://digitalcommons.ilr.cornell.edu/…


Pages 35-36:


Organizing is war. The objective is to convince employers to do something that they do not want to do. That means a fight. If you don't have a war mentality, your chances of success are limited. Organizing without the NLRB means putting enough pressure on employers, costing them enough time, energy and money to either eliminate them or get them to surrender to the union. This is what the UFCW calls a pressure campaign.


[112] Book: An Injury to All: The Decline of American Unionism. By Kim Moody. Verso, 1988. Page 306:


In the search for successful strategies and tactics, the corporate campaign came into increasing use in the 1980s. The term itself came from Ray Rogers…. The techniques involved a combination of tactics such as consumer boycotts, legal appeals, attempts to broaden the issues from simple labor relations to moral or social matters, and pressure on interlocking sectors of the business and financial community in hopes of isolating the offending employer. According to Charles Perry, one of the first academics to study corporate campaigns, a central feature of the corporate campaign is 'conflict escalation'. In particular, the corporate campaign 'seeks to define or redefine the issue in dispute so as to draw the sympathy and support of the general public and special interest groups.'5


Back cover: "Kim Moody, on the staff of the Detroit-based Labor Notes, is one of the most respected labor journalists in North America. He works closely with the rank-and-file anti-concession movement, and has been on the scene of most of the current labor struggles he describes."


[113] Manual: Developing New Tactics: Winning with Coordinated Corporate Campaigns. AFL-CIO Industrial Union Department, 1985.


Page 6:


Businesses are regulated by a virtual alphabet soup of federal, state, and local agencies, which monitor nearly every aspect of corporate behavior. Although these watchdog agencies employ inspectors to monitor compliance by companies, most also rely on employees and other individuals to file complaints about violations. Once the regulators are alerted to violations by a company, they sometimes assume an adversarial relationship toward the offender.


Regulatory agencies exist to protect citizens, and unions can use the regulators to their advantage. An intransigent employer may find that in addition to labor troubles, there are suddenly government problems as well. To achieve this objective, unions should examine the various regulations that the target company must comply with. Chances are that there are areas in which the company has broken the law, which can form the basis for complaints to the government. Union interest and involvement can make a company extremely uncomfortable, but it is important to make sure that any complaints the union makes are valid.


[114] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A-F). Edited by Eric Arnesen. Routledge, 2007.


Page 1476: "An intentionally provoked strike was losing badly until the union changed tactics and began to run a corporate campaign against the company by allying with environmentalists, politicians, federal government enforcement agencies, foreign politicians and unions and companies against BASF in its various businesses and environmental affairs."


Page 2: "A central aspect of the Staley workers' corporate campaign was targeting the company's largest purchasers of Staley high-fructose corn syrup, Miller Beer and Pepsi Cola. … The campaign had its first big success in early 1994, when Miller Beer announced it was switching to another corn syrup manufacturer."


Page 708:


Alongside the boycott, the maverick activist Ray Rogers ran the first "corporate campaign" in U.S. history. As part of this, ACTWU's supporters disrupted Steven's shareholders' meeting, securing publicity of the company's labor record …


At its peak, the Stevens campaign also inspired the film Norma Rae (1979). In the popular movie, Sally Field won an Oscar for her depiction of a character that was loosely based on Roanoke Rapids worker Crystal Lee Sutton. Following the movie's release, Sutton herself conducted a nationwide tour promote the union's cause, securing a great deal of positive press coverage in the process. As a public relations weapon, in fact, the boycott was clearly a success, although its economic impact on the firm was mild, especially as Stevens only sold around one third of its products directly to the consumer.


[115] Article: "The Pressure is On: Organizing Without the NLRB." By Joe Crump (Secretary-Treasurer of United Food and Commercial Workers Local 951, Grand Rapids, Michigan). Labor Research Review, 1991. http://digitalcommons.ilr.cornell.edu/…


Page 41:


After researching the employer and deciding what issues have a chance of appealing to customers, the most effective way of communicating with them must be determined, given the financial and people-power constraints of the union. Television may be the most effective medium, but unless you have a lot of money, purchased TV time is out of the question. However, if you dig up some ''juicy" information on a targeted employer's business practices, a local TV investigative reporter may be interested in revealing the details to the viewing public.


[116] Article: "A Move to Put the Union Label on Solar Power Plants." By Todd Woody. New York Times, June 19, 2009. http://www.nytimes.com/…


After Stirling Energy Systems filed plans with California regulators to install 30,000 solar dishes on 10 square miles of desert land, its executives got a call from Mr. Joseph, the union lawyer. Sean Gallagher, a vice president for Tessera Solar, the development arm for Stirling, said the company declined Mr. Joseph's request to commit to using union labor.


California Unions for Reliable Energy subsequently filed 143 data requests with the company on the final day such requests could be made, and later intervened in a second, 850-megawatt Stirling solar project.


It was a different story after BrightSource Energy pledged to hire union-friendly contractors to build its Mojave Desert solar power plant complex. Despite questions raised by environmental groups about the project's impact on wildlife, the union group took no action, according to commission documents.


[117] Article: "Organized Labor is Increasingly Less So." By William Serrin. New York Times, November 18, 1984. http://www.nytimes.com/…


If unions want to deal successfully with employers, Ray Rogers, a labor consultant, said recently, ''they won't get far by simply trying to harass and embarrass'' corporations. Unions, the former field representative for the Amalgamated Clothing and Textile Workers said, must ''organize'' workers and ''disorganize'' employers, utilizing a ''divide and conquer strategy'' that pits employer against employer. Companies must be ''forced to deal with inescapable economic and political pressure,'' Mr. Rogers added.


[118] Webpage: "About Corporate Campaign, Inc." Corporate Campaign, Inc. Accessed August 16, 2014 at http://www.corporatecampaign.org/about.php


"Corporate Campaign, Inc. (CCI), and its director, Ray Rogers, have been helping labor unions, human rights and environmental groups and others struggle for justice and achieve major victories since its founding in 1981."


[119] Webpage: "What We Do." Corporate Campaign, Inc. Accessed August 16, 2014 at http://www.corporatecampaign.org/what_we_do.php


"A Corporate Campaign can best be viewed as a multidimensional campaign that attacks an adversary from every conceivable angle, creating relentless pressure on multiple individual and institutional targets."


[120] Article: "Ray Rogers Hits J. P. Stevens Where it Hurts." By James L. Tyson. The Crimson, September 26, 1979. http://www.thecrimson.com/…


But Rogers' thoughts and actions are as much influenced by his past as they are by Saul Alinsky and his book "Rules for Radicals." He directs the campaign against Stevens directors adhering to Alinsky's proposition that "it is not man's 'better nature' but his self-interest that demands the he be his brother's keeper." He forces Stevens directors to take what he calls "the low road to morality," or to make a moral decision not because of a sincere moral concern, but because of a threatened personal interest. And his overall strategy against Stevens is directed by Alinsky's gospel, "Pick the target, freeze it, personalize it, and polarize it."


[121] Book: Workers in America: A Historical Encyclopedia (Volume 1). By Robert E. Weir. ABC-CLIO, 2013.


Page 183: "Corporate campaigns are largely the brainchild of Ray Rogers, who heads Corporate Campaigns Inc. (CCI), in New York City, although many of its tactics evoke those pioneered by the United Farm Workers of America."


[122] Webpage: "About Corporate Campaign, Inc." Corporate Campaign, Inc. Accessed August 16, 2014 at http://www.corporatecampaign.org/about.php


"Corporate Campaign, Inc. (CCI), and its director, Ray Rogers, have been helping labor unions, human rights and environmental groups and others struggle for justice and achieve major victories since its founding in 1981."


[123] Webpage: "What We Do." Corporate Campaign, Inc. Accessed August 16, 2014 at http://www.corporatecampaign.org/what_we_do.php


"A Corporate Campaign can best be viewed as a multidimensional campaign that attacks an adversary from every conceivable angle, creating relentless pressure on multiple individual and institutional targets."


[124] Webpage: "What We Do: Conduct Elections." National Labor Relations Board. Accessed May 28, 2014 at http://www.nlrb.gov/what-we-do/conduct-elections


"In addition to NLRB-conducted elections, federal law provides employees a second path to choose a representative: They may persuade an employer to voluntarily recognize a union after showing majority support by signed authorization cards or other means. These agreements are made outside the NLRB process."


[125] Decision 357 NLRB 72: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d458060afd7


Page 3: "Despite the fact that signed cards authorizing the union to represent the signer are only one form of evidence of majority support that may underlie lawful, voluntary recognition, we use that example throughout our opinion here in order to more clearly state our disagreement with the Dana majority."


[126] Report: "Trends in Union Corporate Campaigns." By Jarol B. Manheim (George Washington University). U.S. Chamber of Commerce, 2005. https://www.uschamber.com/…


Page 5: "To date, unions have waged nearly 300 campaigns against employers, primarily, though not exclusively, to facilitate organizing. … Typically, the role of the corporate campaign today is to force management to accede to union demands for 'card check and neutrality'…."


[127] Research Handbook on the Economics of Labor and Employment Law. Edited by Cynthia L. Estlund and Michael L. Wachter. Edward Elgar Publishing, 2012. Article: "Union organizing and the architecture of employee choice." By Benjamin I. Sachs (Professor of Labor and Industry, Harvard Law School).


Page 151: "Under a card check regime, if a majority of employees in the relevant bargaining unit sign authorization cards, the employers is then required to recognize the union as the employees' agent and to bargain collectively with the union."


[128] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/case.html


We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that, whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union's majority and to support an order to bargain. In this context, the employers urge us to take the step the 1947 [Taft-Hartley] amendments and their legislative history indicate Congress did not take, namely, to rule out completely the use of cards in the bargaining arena. …


That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded needs no extended discussion, for the employers' contentions cannot withstand close examination.


[129] Book: Reforming the Electoral Process in America: Toward More Democracy in the 21st Century. By Brian L. Fife. Praeger, 2010.


Pages 16-17:


The party ballot was used extensively by the mid-19th century in the United States. The party ballots were generally printed and contained the names of the candidates and the designation of the offices. The ticket of each party was separate and could be distinguished from other tickets as they were typically of a different color.59 Because of this practice, there was no secrecy when it came to voting in America. In fact, voter intimidation was quite common at this point in history. Bribery was a fairly overt practice as well.60


Because of the lack of privacy and other realities associated with open voting, reformers in Australia sought to alleviate some of the deficiencies in their electoral system so voting would be done secretly to reduce mob violence in their country. The secret ballot was first proposed in Australia in 1851 and implemented in 1857. The secret ballot, commonly known as the Australian ballot, includes the name of all the candidates….


The utilization of the Australian ballot permitted citizens to register their electoral preferences without fear of reprisal. Compared to the previous system, popular sovereignty was enhanced and the collective preferences of the people were more accurately depicted. The importance of secret voting was encompassed in a very important document after World War II. In the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948, the responsibility of government to ensure democratic elections is emphatically noted:


The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.


[130] Book: Parties and Elections in America: The Electoral Process (6th edition). By L. Sandy Maisel and Mark D. Brewer. Roman & Littlefield, 2012.


Page 40: "Progressive reforms in the electoral area had more immediate impacts. The first was the Australian ballot, a state-printed ballot cast in secret and listing all candidates for a particular position (not one party's candidates for all positions). The new ballot, adopted in all but two states from 1889 to 1891, enabled split-ticket voting and reduced voter intimidation at the polls."


[131] Article: "Australian ballot." Encyclopedia of U.S. Campaigns, Elections, And Electoral Behavior (Volume 2). Edited by Kenneth F. Warren. Sage Publications, 2008.


Page 50: "The Australian ballot was an essential step in the development of democratic elections. Until these reforms, voting took place by voice or show of hands under conditions that were invariably rigged to favor one side. Corruption, bribery, drunkenness, and acts of violence were common, explaining why democratic decision-making came to be known as the manly act of voting."


[132] Ruling 504 U.S. 191: Burson, Attorney General and Reporter for Tennessee v. Freeman. U.S. Supreme Court, May 26, 1992. Decided 5-3. Majority: Blackmun, Rehnquist, White, Kennedy. Concurring: Kennedy, Scalia. Dissenting: Stevens, O'Connor, Souter. http://www.law.cornell.edu/supct/html/90-1056.ZO.html


Majority (http://www.law.cornell.edu/supct/html/90-1056.ZO.html):


In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this wide spread and time tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interest in preventing voter intimidation and election fraud. …


Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissent's contention, the link between ballot secrecy and some restricted zone surrounding the voting area is not merely timing — it is common sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter.


Dissent (http://www.law.cornell.edu/supct/html/90-1056.ZD.html):


[T]he fact that campaign-free zones were, as the plurality indicates, introduced as part of a broader package of electoral reforms does not demonstrate that such zones were necessary. The abuses that affected the electoral system could have been cured by the institution of the secret ballot and by the heightened regulation of the polling place alone, without silencing the political speech outside the polling place.


Scalia concurrence (http://www.law.cornell.edu/supct/html/90-1056.ZC2.html):


Ever since the widespread adoption of the secret ballot in the late 19th century, viewpoint neutral restrictions on election day speech within a specified distance of the polling place — or on physical presence there — have been commonplace, indeed prevalent. By 1900, at least 34 of the 45 States (including Tennessee) had enacted such restrictions.


[133] Ruling 270 S.C. 87: Edwards v. Abrams. Supreme Court of South Carolina, January 10, 1978. Decided 4-0. https://www.courtlistener.com/…


Our constitution not only permits, but mandates the General Assembly to regulate and provide for elections. Among those things required is that the legislature "…insure secrecy of voting, …" the question thus presented is: Does the statute here under attack, which would allow husbands and wives to enter a voting booth together and discuss the ballot, violate the constitutional provisions? We think it does. …


… In commenting in the case of Corn v. Blackwell, 191, S.C. 183, 4 S.E. (2d) 254 (1939), this Court held that secrecy of the ballot is absolutely essential. …


To allow husbands and wives to vote together admittedly has considerable appeal. However, if we should sustain the right of the legislature to allow husbands and wives to enter a voting booth together, we see no rationale upon which we could deny its right to permit brothers and sisters, parents and children, consenting friends, etc., to vote together. Moreover, if the General Assembly can allow two persons to vote together, it might by like token permit three or more persons to enter a voting booth together.


Counsel for the Relator argues that the right to cast a secret ballot may be waived. There is some authority for the proposition that secrecy is a personal right granted to the voter. We think, however, that the overriding purpose of the secrecy provision is to insure the integrity of the voting process. It is calculated to secure privacy, personal independence and freedom from party or individual surveillance. It tends to promote an independent and free exercise of the elective franchise.


Counsel for the Relator argues that the right of secrecy is not absolute and cites Code § 7-13-780, which provides that a voter who needs assistance by reason of inability to read or write, or by reason of physical handicap incapacitating him from preparing a ballot, is entitled to receive assistance in voting. Without such assistance, blind persons, and some others, would be denied the right of suffrage. Either the right of suffrage must be denied or the mandate of secrecy relaxed for handicapped persons. There is no rational basis why the mandate of secrecy in the state constitution must be relaxed for two persons perfectly capable of voting alone. We hold that § 7-13-750 of the 1976 Code is unconstitutional.


[134] Research Handbook on the Economics of Labor and Employment Law. Edited by Cynthia L. Estlund and Michael L. Wachter. Edward Elgar Publishing, 2012. Article: "Union organizing and the architecture of employee choice." By Benjamin I. Sachs (Professor of Labor and Industry, Harvard Law School).


Page 151: "Unlike an NLRB election, in a card check regime there is emphatically no requirement of secrecy. To the contrary, cards may be solicited by a union supporter and signed in the presence of the union supporter who solicited the card. Moreover, although the validity of a card can be challenged ex post on the ground that it was obtained through coercion or fraud, there is no contemporaneous oversight of the card solicitation process."


[135] "Testimony of Jennifer Jason, Former UNITE HERE Organizer." U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor and Pensions, February 8, 2007. http://www.gpo.gov/…


My name is Jen Jason. I am a former labor organizer for UNITE HERE, a union that represents more than 450,000 active members and more than 400,000 retirees throughout North America in the textile, lodging, foodservice and manufacturing industries. …


As an Organizer for UNITE, I primarily worked on and later led "card check'' organizing campaigns. …


During my tenure, I organized under U.S. labor law and in Canada under different provincially specific laws in Ontario, British Columbia, as well as Quebec and Manitoba. I was directed to organize thousands of workers using "card check'' strategies against companies such as TJ Maxx, Levi's, New Flyer Bus Company, and Cintas. …


A "card check'' campaign begins with union organizers going to the homes of workers over a weekend, a tactic called "housecalling,'' with the sole intent of having those workers sign authorization cards. Called a "blitz'' by the unions, it entails teams of two or more organizers going directly to the homes of workers. …


In most cases, the workers have no idea that there is a union campaign underway. Organizers are taught to play upon this element of surprise to get "into the door.'' They are trained to perform a five part house call strategy that includes: Introductions, Listening, Agitation, Union Solution, and Commitment. The goal of the organizer is to quickly establish a trust relationship with the worker, move from talking about what their job entails to what they would like to change about their job, agitate them by insisting that management won't fix their workplace problems without a union and finally convincing the worker to sign a card. …


When the union is allowed to implement the "card check'' strategy, the decision about whether or not an individual employee would choose to join a union is reduced to a crisis decision. This situation is created by the organizer and places the worker into a high pressure sales situation. … I have personally heard from workers that they signed the union card simply to get the organizer to leave their home and not harass them further.


[136] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/casef.html


Further, the employers argue that, without a secret ballot, an employee may, in a card drive, succumb to group pressures or sign simply to get the union "off his back," and then be unable to change his mind as he would be free to do once inside a voting booth. But the same pressures are likely to be equally present in an election, for election cases arise most often with small bargaining units,22 where virtually every voter's sentiments can be carefully and individually canvassed. And no voter, of course, can change his mind after casting a ballot in an election, even though he may think better of his choice shortly thereafter.


[137] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/case.html


NOTE: See the footnote above and the entirety of the ruling.


[138] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/case.html


The employers' second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board's present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators have differed significantly as to the effectiveness of the Board's Cumberland Shoe doctrine (see supra at 395 U. S. 584) to cure such abuses. …


We need make no decision as to the conflicting approaches used with regard to dual-purpose cards, for in each of the five organization campaigns in the four cases before us, the cards used were single-purpose cards, stating clearly and unambiguously on their face that the signer designated the union as his representative. … Thus, the sole question before us, raised in only one of the four cases here, is whether the Cumberland Shoe doctrine is an adequate rule under the Act for assuring employee free choice.


In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30%25 of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employer here that employees, as a rule, are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance,26 and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts.


[139] Ruling 16068: National Labor Relations Board v. Cumberland Shoe Corporation. United States Court of Appeals, Sixth Circuit, October 26, 1965. http://openjurist.org/351/f2d/917


On review of the Rulings of the Trial Examiner (to which both respondent and the general counsel had filed exceptions), the [National Labor Relations Board] found:


"We believe that the instant case is factually distinguishable from Englewood Lumber, supra, and that hence that case is inapplicable. While it is true, as found by the Trial Examiner, that 17 of the signatories testified that they were told that the purpose of the cards was to secure a Board election,3 it does not appear that they were told that this was the only purpose of the cards, and we cannot say, on the basis of this record that the card solicitors so indicated to employees.4 The record indicates that the testimony to this effect consisted of affirmative responses by the signatories to leading questions propounded by Respondent's counsel, upon cross-examination, as to whether they were told that the purpose of the cards was to secure an election. We do not deem such testimony sufficient to controvert the statement of the purpose and effect of such cards contained on the face thereof, nor do we consider it inconsistent with an understanding that the cards served the dual purpose of designating a representative and of securing an election.4 In the Englewood Lumber case the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many signatures, including those of two employees whose hostility to the designated union was open and notorious and explicitly communicated to the solicitor. …"


NOTE: The full NLRB ruling is currently not available online.


[140] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/case.html


NOTE: See the entirety of the ruling.


[141] Decision 351 NLRB 28: Dana Corp. National Labor Relations Board, September 29, 2007. http://www.nlrb.gov/…


Page 439:


Third, like a political election, a Board election presents a clear picture of employee voter preference at a single moment. On the other hand, card signings take place over a protracted period of time. In the present Metaldyne cases, for instance, the Union took over a year to collect the cards supporting its claim of majority support. During such an extended period, employees can and do change their minds about union representation.23 On this point, several briefs filed in this proceeding refer to statistics from a 1962 presentation by former Board Chairman McCulloch as empirical evidence of the lesser reliability of cards to indicate actual employee preference for union representation. These statistics showed a significant disparity between union card showings of support and ensuing Board election results. In particular, unions with a 50- to 70-percent majority card showing won only 48 percent of elections. Even unions with more than a 70-percent card showing won only 74 percent of elections.24


23 See, e.g., Alliant Foodservice, 335 NLRB 695 (2001), where 16 employees who signed cards for one union subsequently signed cards for another union.

24 McCulloch, A Tale of Two Cities: Or Law in Action, Proceedings of ABA Section of Labor Relations Law 14, 17 (1962). Of course, cards submitted as a showing of interest in support of election petitions merely provide administrative grounds for conducting the election. In this respect, the dissent fails to recognize that all of the aforementioned reasons for questioning the reliability of the cards become moot once an election is held. Unlike card-based voluntary recognition, "it is the election, not the showing of interest, which decides the substantive issue [of representation]." Northeastern University, 218 NLRB 247, 248 (1975).


[142] Ruling 395 U.S. 575: NLRB v. Gissel Packing Company. U.S. Supreme Court, June 16, 1969. Decided 8-0. http://supreme.justia.com/cases/federal/us/395/575/case.html


NOTE: See the entirety of the ruling.


[143] Ruling 504 U.S. 191: Burson, Attorney General and Reporter for Tennessee v. Freeman. U.S. Supreme Court, May 26, 1992. Decided 5-3. Majority: Blackmun, Rehnquist, White, Kennedy. Concurring: Kennedy, Scalia. Dissenting: Stevens, O'Connor, Souter. http://www.law.cornell.edu/supct/html/90-1056.ZO.html


Majority (http://www.law.cornell.edu/supct/html/90-1056.ZO.html):


In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this wide spread and time tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interest in preventing voter intimidation and election fraud. …


Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissent's contention, the link between ballot secrecy and some restricted zone surrounding the voting area is not merely timing — it is common sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter.


Dissent (http://www.law.cornell.edu/supct/html/90-1056.ZD.html):


[T]he fact that campaign-free zones were, as the plurality indicates, introduced as part of a broader package of electoral reforms does not demonstrate that such zones were necessary. The abuses that affected the electoral system could have been cured by the institution of the secret ballot and by the heightened regulation of the polling place alone, without silencing the political speech outside the polling place.


Scalia concurrence (http://www.law.cornell.edu/supct/html/90-1056.ZC2.html):


Ever since the widespread adoption of the secret ballot in the late 19th century, viewpoint neutral restrictions on election day speech within a specified distance of the polling place — or on physical presence there — have been commonplace, indeed prevalent. By 1900, at least 34 of the 45 States (including Tennessee) had enacted such restrictions.


[144] Webpage: "Cosponsors: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


"Sponsor: Rep. Miller, George [D-CA-7] … Cosponsors … Democratic [=] 226 … Republican [=] 7"


[145] Bill: "H.R.800 - Employee Free Choice Act of 2007 [Placed on Calendar Senate (03/02/2007)]." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


AN ACT


To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes. …


SEC. 2. STREAMLINING UNION CERTIFICATION. …


(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).


NOTE: See the next footnote for the above-cited "subsection (a)."


[146] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


[147] Bill: "H.R.800 - Employee Free Choice Act of 2007 [Placed on Calendar Senate (03/02/2007)]." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


NOTE: See entirety of bill.


[148] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.


[149] Calculated with data from vote 118: "The Employee Free Choice Act." U.S. House of Representatives, March 1, 2007. http://clerk.house.gov/evs/2007/roll118.xml

 

Party  Voted YES  Voted NO
Republican  13  7%  183  93%
Democrat  228  99%  2  1%


NOTE: Results do not include those not voting or those who voted "Present."


[150] Report: "Filibusters and Cloture in the Senate." By Richard S. Beth & Stanley Bach. Congressional Research Service, Updated March 28, 2003. http://www.senate.gov/reference/resources/pdf/RL30360.pdf


Summary (page 2 in pdf):


The filibuster is widely viewed as one of the Senate's most characteristic procedural features. Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators' rights and opportunities in the legislative process. …


Senate Rule XXII, however, known as the "cloture rule," enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day after the motion is made. Then it usually requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. Invoking cloture on a proposal to amend the Senate's standing rules requires the support of two-thirds of the Senators present and voting.


Page CRS-10:


Invoking cloture usually requires a three-fifths vote of the entire Senate—"three-fifths of the Senators duly chosen and sworn." If there are no vacancies, therefore, 60 Senators must vote to invoke cloture. In contrast, most other votes require only a simple majority (that is, 51%) of the Senators present and voting, assuming that those Senators constitute a quorum. In the case of a cloture vote, the key is the number of Senators voting for cloture, not the number voting against. Failing to vote on a cloture motion has the same effect as voting against the motion: it deprives the motion of one of the 60 votes needed to agree to it.


There is an important exception to the three-fifths requirement to invoke cloture. Under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This exception has its origin in the recent history of the cloture rule. Before 1975, two-thirds of the Senators present and voting (a quorum being present) was required for cloture on all matters. In early 1975, at the beginning of the 94th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture. However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from a maximum of 67 votes (two-thirds of the Senators present and voting) to a minimum of 60 votes (three-fifths of the Senators duly chosen and sworn) on all matters except future rules changes, including changes in the cloture rule itself.11


[151] "Standing Rules of the Senate: Rule XXII: Precedence Of Motions." Accessed June 20, 2008. http://rules.senate.gov/senaterules/rule22.php


2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:


"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.


Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.


After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a three-fifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.


[152] Webpage: "Actions: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at http://beta.congress.gov/…


"06/26/2007 Senate Cloture on the motion to proceed not invoked in Senate by Yea-Nay Vote. 51 - 48. Record Vote Number: 227."


[153] Calculated with data from vote 227: "Employee Free Choice Act of 2007." U.S. Senate, June 26, 2007. http://www.senate.gov/…

 

Party  Voted YES  Voted NO
Republican  1  2%  48  98%
Democrat  48  100%  0  0%
Independent  2  100%  0  0%


NOTE: Results do not include those not voting or those who voted "Present."


[154] Webpage: "Summary: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


"Sponsor: Rep. Miller, George [D-CA-7]"


[155] Letter to the "Junta Local de Conciliacion y Arbitraje del Estado de Puebla" from "16 members of Congress," August 29, 2001. http://edworkforce.house.gov/…


August 29, 2001


Junta Local de Conciliacion y Arbitraje del Estado de Puebla [Local Board of Conciliation and Arbitration of Puebla, Mexico]

Lic. Armando Poxqui Quintero

7 Norte, Numero 1006 Altos

Colonia Centro

Puebla, Mexico C.P. 72000


Dear members of the Junta Local de Conciliacion y Arbitraje of the state of Puebla:


As members of Congress of the United States who are deeply concerned with international labor standards and the role of labor rights in international trade agreements, we are writing to encourage you to use the secret ballot in all union recognition elections.


We understand that the secret ballot is allowed for, but not required, by Mexican labor law. However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.


We respect Mexico as an important neighbor and trading partner, and we feel that the increased use of the secret ballot in union recognition elections will help bring real democracy to the Mexican workplace.


Sincerely, (16 members of Congress)


George Miller, Marcy Kaptur,

Bernard Sanders, William J. Coyne,

Lane Evans, Bob Filner,

Martin Olav Sabo, Barney Frank,

Joe Baca, Zoe Lofgren,

Dennis J. Kucinich, Calvin M. Dooley,

Fortney Pete Stark, Barbara Lee,

James P. McGovern, Lloyd Doggett


http://www.house.gov/georgemiller/


[156] Article: "Puebla (state, Mexico)." Encyclopædia Britannica. Accessed July 22, 2014 at http://www.britannica.com/EBchecked/topic/482731/Puebla


"Puebla, estado (state), east-central Mexico. It is bounded by the states of Veracruz to the north and east, Oaxaca to the south, Guerrero to the southwest, Morelos and México to the west, and Tlaxcala and Hidalgo to the northwest. Nearly half of its population is concentrated in the city of Puebla (Puebla de Zaragoza), which is the state capital and chief commercial centre."


[157] Article: "Exceedingly Social, But Doesn't Like Parties." By Michael Powell.

Washington Post, November 5, 2006. http://www.washingtonpost.com/…


Quoting Sanders: "I'm a democratic socialist."


[158] Article: "Bernie Sanders: Obamacare is a 'good Republican program'." By Bryan Koenig. CNN, September 24th, 2013. http://politicalticker.blogs.cnn.com/…


"Sanders, an Independent who caucuses with Senate Democrats, reiterated his support of a universal single-payer Medicare for all, inspired by health care programs in Europe."


[159] Letter to the "Junta Local de Conciliacion y Arbitraje del Estado de Puebla" from "16 members of Congress," August 29, 2001. http://edworkforce.house.gov/…


Sincerely, (16 members of Congress)


George Miller, Marcy Kaptur,

Bernard Sanders, William J. Coyne,

Lane Evans, Bob Filner,

Martin Olav Sabo, Barney Frank,

Joe Baca, Zoe Lofgren,

Dennis J. Kucinich, Calvin M. Dooley,

Fortney Pete Stark, Barbara Lee,

James P. McGovern, Lloyd Doggett


[160] Bill: "H.R.800 - Employee Free Choice Act of 2007 [Placed on Calendar Senate (03/02/2007)]." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


AN ACT


To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes. …


SEC. 2. STREAMLINING UNION CERTIFICATION. …


(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).


NOTE: See the next footnote for the above-cited "subsection (a)."


[161] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


[162] Vote 118: "The Employee Free Choice Act." U.S. House of Representatives, March 1, 2007. http://clerk.house.gov/evs/2007/roll118.xml


"AYES … Baca … Doggett … Filner … Frank (MA) … Kaptur … Kucinich … Lee … Lofgren, Zoe … McGovern … Miller, George … Stark"


NOTE: As shown in the next footnote, all of these individuals also sponsored the bill.


[163] Webpage: "Cosponsors: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


"Sponsor: Rep. Miller, George [D-CA-7] … Cosponsors … Kucinich, Dennis J. [D-OH-10] … Lee, Barbara [D-CA-9] … Filner, Bob [D-CA-51] … Stark, Fortney Pete [D-CA-13] … Baca, Joe [D-CA-43] … Kaptur, Marcy [D-OH-9] … Frank, Barney [D-MA-4] … McGovern, James P. [D-MA-3] … Lofgren, Zoe [D-CA-16] … Doggett, Lloyd [D-TX-25]"


[164] Vote 227: "Employee Free Choice Act of 2007." U.S. Senate, June 26, 2007. http://www.senate.gov/…


"Sanders (I-VT), Yea"


[165] Webpage: "Who Are The Teamsters?" Teamsters Union. Accessed August 22, 2014 at http://teamster.org/who-are-teamsters


"The Teamsters Union is North America's strongest and most diverse labor union. In 1903, the Teamsters started as a merger of the two leading team driver associations. These drivers were the backbone of America's robust economic growth, but they needed to organize to wrest their fair share from greedy corporations. Today, the Union's task is exactly the same."


[166] Webpage: "Teamsters Legislative Update: Employee Free Choice Act." Teamsters Union, 2010. Accessed August 22, 2014 at http://teamster.org/content/teamsters-legislative-update


Don't believe the lies of Big Business. Corporate America wants you to believe the Employee Free Choice Act will do away with the secret ballot. Not true. What the legislation does is to put that decision back in the hands of workers. …


… We ask you to join in the fight to pass the Employee Free Choice Act because every working American should have the right to become part of a union.


NOTE: This webpage is undated, but based upon the following sentence, at least a portion of it dates to 2010: "To email your members of Congress and ask that they make pension relief legislation a top priority in 2010, click here."


[167] NOTE: A search conducted on August 22, 2014 at www.congress.gov shows the most recent versions of the "Employee Free Choice Act" were introduced in the U.S. House and Senate in 2009. As shown in the footnotes below, the key operative language in these bills is the same as the "Employee Free Choice Act of 2007."


[168] Bill: "H.R.800 - Employee Free Choice Act of 2007 [Placed on Calendar Senate (03/02/2007)]." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


AN ACT


To amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practices during organizing efforts, and for other purposes. …


SEC. 2. STREAMLINING UNION CERTIFICATION. …


(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).


NOTE: See the next footnote for the above-cited "subsection (a)."


[169] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


[170] Bill: "H.R.1409 - Employee Free Choice Act of 2009." 111th Congress (2009-2010). Accessed August 22, 2014 at https://beta.congress.gov/111/bills/hr1409/BILLS-111hr1409ih.pdf


Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).


[171] Bill: "S.560 - Employee Free Choice Act of 2009." 111th Congress (2009-2010). Accessed August 22, 2014 at https://beta.congress.gov/111/bills/s560/BILLS-111s560is.pdf


Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition. If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).


[172] Vote 227: "Employee Free Choice Act of 2007." U.S. Senate, June 26, 2007. http://www.senate.gov/…


"Obama (D-IL), Yea"


[173] Article: "Obama says he'll 'keep on fighting' to pass 'card check' bill." By Michael O'Brien. The Hill, August 4, 2010. http://thehill.com/…


"President Obama told the AFL-CIO on Wednesday that he would 'keep on fighting' to pass the controversial 'card check' bill. … '[W]e're going to keep on fighting to pass the Employee Free Choice Act," Obama told the union.' "


[174] Conducting Local Union Officer Elections: A Guide for Election Officials. U.S. Department of Labor (Hilda L. Solis, Secretary), Office of Labor-Management Standards, 2010. http://www.dol.gov/olms/regs/compliance/localelec/localelec.pdf


Introduction:


Congratulations! You have been selected to serve as an election official in your union. You may have volunteered, been elected by the membership, appointed by your union's president, chosen by one of the candidates, or maybe you were "drafted" to serve in this role. In any event, during the upcoming weeks you and your fellow election officials will be entrusted with the responsibility of providing members with the opportunity to exercise the most fundamental of union rights, the right to elect their union's officers by secret ballot. …


As an election official … you should uphold American democratic traditions by protecting the right of every member in good standing to nominate candidates, run for office, and vote by secret ballot for officers of your union.


Page 28: "The opportunity to cast a secret ballot in an officer election is the most fundamental right guaranteed by the LMRDA [Labor-Management Reporting and Disclosure Act of 1959, as Amended] to all union members in good standing."


[175] Webpage: "The Executive Branch." White House. Accessed February 1, 2013 at http://www.whitehouse.gov/our-government/executive-branch


Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments — each led by an appointed member of the President's Cabinet — carry out the day-to-day administration of the federal government. They are joined in this by other executive agencies such as the CIA and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under the full authority of the President.


The Department of Labor oversees federal programs for ensuring a strong American workforce. These programs address job training, safe working conditions, minimum hourly wage and overtime pay, employment discrimination, and unemployment insurance.


[176] Conducting Local Union Officer Elections: A Guide for Election Officials. U.S. Department of Labor (Hilda L. Solis, Secretary), Office of Labor-Management Standards, 2010. http://www.dol.gov/olms/regs/compliance/localelec/localelec.pdf


Page 77 (in pdf):


Sec. 401. (a) Every national or international labor organization, except a federation of national or international labor organizations, shall elect its officers not less often than once every five years either by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot.


(b) Every local labor organization shall elect its officers not less often than once every three years by secret ballot among the members in good standing.


[177] "International Brotherhood of Teamsters Constitution." Adopted by the 28th International Convention, June 27 - July 1, 2011. http://teamster.org/sites/teamster.org/files/IBT-Constitution-2011.pdf


NOTE: Below are seven examples in context. Credit for bringing this to the attention of Just Facts belongs to Deroy Murdoch [Commentary: "Secret Ballots for Me, But Not for Thee." By Deroy Murdock. National Review, March 20, 2009. http://article.nationalreview.com/…]


Page 21:


Delegates to any International Convention in which any International Union officers are nominated or elected shall be chosen by secret ballot vote of the membership in accordance with Article XXII and applicable law relating to the nomination and election of union officers. … Local Unions having regularly scheduled officer elections during the fall of the year preceding the Convention may elect delegates and alternate delegates at the same time as officers are elected, provided that separate secret ballots are utilized for the delegates and alternate delegate election. … All Local Unions not conducting delegate and alternate delegate elections in connection with their regular officer elections shall conduct separate secret ballot elections for those positions. … Secret ballot elections shall be held not less than thirty (30) days after the nomination meeting.


Page 22: "Local Unions in Trusteeship may send delegates to the Convention only if a secret ballot election is conducted in accordance with Article XXII.


Pages 23-24:


All International officers shall be entitled to all the privileges of regularly credentialed delegates, but shall not be permitted to nominate or vote for officers at the Convention unless they have been elected as delegates in secret ballot delegate elections held by a Local Union; provided that this shall not be construed to make eligible for International office any member who is not otherwise eligible through having worked within the jurisdiction for such a length of time as to have made him eligible for International office as is provided in this Constitution.


Page 33:


Section 3(a). No less than four (4) months and no more than six (6) months after the Convention, candidates nominated for the ballot for the offices of General President, General Secretary-Treasurer, Vice Presidents, and International Trustees shall be elected by direct rank-and-file voting by members in good standing. All voting shall be by secret ballot. All eligible members shall be entitled to vote for General President, General Secretary-Treasurer, Vice Presidents At-Large, and International Trustees. Eligible members shall also be entitled to vote for their respective Regional Vice Presidents.


[178] Book: Labour Law in the USA (3rd edition). By Alvin L. Goldman and Roberto L. Corrada. Kluwer Law International, 2011.


Pages 441-442: "A basic principle affecting the rules concerning withdrawal of recognition is the doctrine that once recognized as a bargaining agent, a labor organization is presumed to have continued support from the majority of bargaining unit employees regardless of whether there has been a change in the bargaining unit personnel."


[179] Webpage: "Decertification election." National Labor Relations Board. Accessed June 25, 2014 at http://www.nlrb.gov/…


"Under certain circumstances, you can vote out or 'decertify' your union, or replace it with a different union. At least 30% of your coworkers must sign cards or a petition asking the NLRB to conduct an election. Unless a majority of the votes cast in the election are in favor of union representation, the union it will be decertified."


[180] Decision 333 NLRB 105: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4-0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. http://mynlrb.nlrb.gov/link/document.aspx/09031d45800c0be3


Majority:


In this case we reconsider whether, and under what circumstances, an employer may lawfully withdraw recognition unilaterally from an incumbent union.1 The Board has long held that an employer may withdraw recognition by showing either that the union has actually lost the support of a majority of the bargaining unit employees or that it has a good-faith doubt, based on objective considerations, of the union's continued majority status. Celanese Corp., 95 NLRB 664 (1951). On the same showing of good-faith doubt, an employer may test an incumbent union's majority status by petitioning for a Board-conducted (RM) election, United States Gypsum Co., 157 NLRB 652 (1966),2 or by polling its employees to ascertain their union sentiments, Texas Petrochemicals Corp., 296 NLRB 1057, 1059 (1989), enfd. as modified 923 F.2d 398 (5th Cir. 1991).


The General Counsel, the Charging Party Union, and the AFL–CIO as amicus curiae urge the Board to abandon the Celanese rule and prohibit employers from withdrawing recognition except pursuant to the results of a Board-conducted election. They also oppose lowering the standard that employers must meet to obtain RM elections. Employers urge the Board to retain the Celanese rule but to lower the standard for processing RM petitions.


While this case was pending, the Supreme Court issued Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), which addressed the Board's good-faith doubt standard. The Court held that maintaining a unitary standard for an employer's withdrawal of recognition, filing an RM petition, and polling its employees was rational, but indicated that the Board also could rationally adopt a nonunitary standard, including, in theory, imposing more stringent requirements for withdrawal of recognition.3 The Court also held that the Board's "good-faith doubt" standard must be interpreted to permit the employer to act where it has a "reasonable uncertainty" of the union's majority status, rejecting the Board's argument that the standard required a good-faith disbelief of the union's majority support.


In addressing the arguments concerning the Celanese rule and the standards for holding RM elections, then, we must take into account the Court's teachings in Allentown Mack. In particular, we must avoid the confusion over terminology which the Court identified in our application of the good-faith doubt standard.


After careful consideration, we have concluded that there are compelling legal and policy reasons why employers should not be allowed to withdraw recognition merely because they harbor uncertainty or even disbelief concerning unions' majority status. We therefore hold that an employer may unilaterally withdraw recognition from an incumbent union only where the union has actually lost the support of the majority of the bargaining unit employees, and we overrule Celanese and its progeny insofar as they permit withdrawal on the basis of good-faith doubt. Under our new standard, an employer can defeat a postwithdrawal refusal to bargain allegation if it shows, as a defense, the union's actual loss of majority status.


We have also decided to allow employers to obtain RM elections by demonstrating good-faith reasonable uncertainty (rather than disbelief) as to unions' continuing majority status. We adopt this standard to enable employers who seek to test a union's majority status to use the Board's election procedures—in our view the most reliable measure of union support—rather than the more disruptive process of unilateral withdrawal of recognition. …


Absent specific statutory direction, the Board has been guided by the Act's clear mandate to give effect to employees' free choice of bargaining representatives. The Board has also recognized that, for employees' choices to be meaningful, collective-bargaining relationships must be given a chance to bear fruit and so must not be subjected to constant challenges. Therefore, from the earliest days of the Act, the Board has sought to foster industrial peace and stability in collective-bargaining relationships, as well as employee free choice, by presuming that an incumbent union retains its majority status.16 Except at certain times, however, that presumption is rebuttable.17 The showing required to rebut the presumption is the subject of this case. …


… In our view, there is no basis in either law or policy for allowing an employer to withdraw recognition from an incumbent union that retains the support of a majority of the unit employees, even on a good-faith belief that majority support has been lost. Accordingly, we shall no longer allow an employer to withdraw recognition unless it can prove that an incumbent union has, in fact, lost majority support.


While adopting a more stringent standard for withdrawals of recognition, we find it appropriate to adopt a different, more lenient standard for obtaining RM elections. Thus, we emphasize that Board-conducted elections are the preferred way to resolve questions regarding employees' support for unions.42 For that reason, we find it appropriate to abandon the unitary standard for withdrawing recognition and processing RM petitions. Instead, we shall allow employers to obtain RM elections by demonstrating reasonable good-faith uncertainty as to incumbent unions' continued majority status. …


… An employer who withdraws recognition from a majority union, even in good faith, invades his employees' Section 7 rights every bit as much as an employer who unwittingly extends recognition to a minority union. Consequently, an employer who withdraws recognition from an incumbent union, in the honest but mistaken belief that the union has lost majority support, should be found to violate Section 8(a)(5). …


We emphasize that an employer with objective evidence that the union has lost majority support—for example, a petition signed by a majority of the employees in the bargaining unit—withdraws recognition at its peril. If the union contests the withdrawal of recognition in an unfair labor practice proceeding, the employer will have to prove by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5). …


In the end, our dispute with our colleague is over whether an incumbent union should continue to be the bargaining representative while its support is being tested in a Board election. He would allow an employer to oust the union on a showing of good-faith uncertainty, and thus to avoid a bargaining obligation until RC election proceedings have run their course. Under our approach, the union remains the bargaining representative, and the employer's bargaining obligation continues, while the RM (or RD) election proceedings are underway.


[181] Decision 333 NLRB 105: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4-0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. http://mynlrb.nlrb.gov/link/document.aspx/09031d45800c0be3


Concurrence:


In sum, my colleagues have subjected employers to a guessing game. If the employer guesses wrongly, the employer violates the Act, notwithstanding his good faith. I prefer that these matters not be the subject of a guessing game. They should be a matter of good faith. If the employer has a good-faith uncertainty as to majority status, the employer can withdraw recognition. If the employer has a good-faith belief of majority status, he can continue recognition.4


My colleagues say that there is a way out of the dilemma, viz the employer can file an RM petition and obtain a Board election. And, in this regard, they say that they would permit the processing of an RM petition if there is uncertainty as to the Union's majority status. I agree with this RM standard.5 However, I do not agree that the RM petition offers a solution to the problem discussed above. That is, it does not obviate the necessity for the extant rule which grants employers the option of withdrawal of recognition on a showing of uncertainty as to the union's majority status. My reasons are set forth below.


RM petitions are subject to the "blocking charge" principle. Faced with an RM petition, unions can file charges to forestall or delay the election. Concededly, in some situations, the Regional Director can dismiss the charges or can decide that the charges, even if meritorious, would not preclude a valid election. However, that determination requires investigatory time. During that time, the employer must continue recognition of the incumbent Union.


Further, the Regional Director also has the power to issue complaint, and the authority to conclude that the charges do preclude a valid election. The Board has no power to review the former determination, and the Board reviews the latter only under an "abuse of discretion" standard. If the Regional Director so concludes, the charge will block the election for the prolonged period during which the charge/complaint is litigated. Although the employer could settle the case, he may not wish to do so if he believes that he has a valid defense. Further, even if the employer litigates and wins after prolonged litigation, the block will be removed only after that litigation. In the meantime, the employer must continue recognition of the incumbent.


In addition, even if there is no blocking charge, or if the block is removed, the election will not necessarily resolve the question concerning representation. In those cases where the union loses the election, the union can file objections and/or challenges. There is often a prolonged period for the litigation of these matters. The employer must recognize the incumbent during the period of this litigation.


In sum, the RM road can be a long and difficult one. During this prolonged period, the employer must continue recognition, even though there is good-faith uncertainty as to the union's majority status. In my view, it is far better to resolve the matter by having an RC election. That is, after the employer has withdrawn recognition based on a good-faith uncertainty (a lawful withdrawal in my view), the union can immediately file an RC petition. Although the union could file blocking charges, its interest presumably would be to have a quick election and resume its representation status. Further, the Board correctly gives a high priority to processing such petitions as expeditiously as possible. Thus, I would continue this approach. It comports with current law and procedures, and it is not shown to be deficient. …


Finally, my colleagues argue that their rule is justified by a sense of parity. They note that an employer has a right to an election where the union seeks to become the representative, and thus, a union should be given an election when the employer seeks to terminate the relationship. The argument has no merit. The situations are not parallel. In the former situation, the union is seeking an election as soon as possible, and thus, is reluctant to file blocking charges. In the latter situation, the union is seeking to delay the election as much as possible, and thus, has an interest in filing blocking charges.


Because there are no valid reasons for reversing the extant rule, and because the new rule is imprudent and unfair, I do not embrace the new rule.


[182] Article: "Wagner Act." Encyclopædia Britannica Ultimate Reference Suite 2004.


"officially National Labor Relations Act (1935) the single most important piece of labour legislation enacted in the United States in the 20th century."


[183] Paper: "Union Decertification under the NLRA." By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643-694. http://scholarship.kentlaw.iit.edu/…


Page 646: "When the Wagner Act17 was enacted in 1935, section 9 set out the procedure enabling employees in an appropriate bargaining unit to select a union as their exclusive bargaining representative.18 The Wagner Act, however, contained no provision whereby employees dissatisfied with their union could rescind their choice."


[184] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


Sec. 7. 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 concerted activities, for the purpose of collective bargaining or other mutual aid or protection. …


Sec. 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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment


[185] Paper: "Union Decertification under the NLRA." By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643-694. http://scholarship.kentlaw.iit.edu/…


Page 647: "In 1947, as part of the revision of national labor policy embodied in the Taft-Hartley Act,19 section 9(c)(1)(A) was inserted to provide that an election petition [for decertification] could be filed…."


[186] Public Law 80-101: "Labor Management Relations Act of 1947" (a.k.a "Taft-Hartley Act"). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. http://www.fofweb.com/…


(e) (2) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 8(a)(3)(ii), of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit, and shall certify the results thereof to such labor organization and to the employer.


[187] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 14:


Petition for decertification election. The Act also contains a provision whereby employees or someone acting on their behalf can file a petition seeking an election to determine if the employees wish to retain the individual or labor organization currently acting as their bargaining representative, whether the representative has been certified or voluntarily recognized by the employer. This is called a decertification election. …


Showing of interest required. Regarding the showing of interest, it is the policy to require that a petitioner requesting an election for either certification of representatives or decertification show that at least 30 percent of the employees favor an election. The Act also requires that a petition for a union-security deauthorization election be filed by 30 percent or more of the employees in the unit covered by the agreement for the NLRB to conduct an election for that purpose. The showing of interest must be exclusively by employees who are in the appropriate bargaining unit in which an election is sought.


[188] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. …

3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.


[189] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.


[190] Decision 357 NLRB 72: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d458060afd7


Page 4:


To be sure, the [National Labor Relations] Act provides that the Board can certify a representative, with the attendant legal advantages thereof (including a 12-month bar [against decertification elections]) only after a Board-supervised election. Nevertheless, far from being the suspect and underground process the Dana majority characterized it to be, voluntary recognition has been woven into the very fabric of the Act since its inception and has, until the decision in Dana, been understood to be a legitimate means of giving effect to the uncoerced choice of a majority of employees.


Page 10:


We therefore overrule Dana and return to the previously settled rule that an employer's voluntary recognition of a union [without a Board-supervised election], based on a showing of the union's majority status, bars an election petition for a reasonable period of time.


As in UGL-UNICCO, supra, also decided today, which defined the reasonable period of bargaining during which the "successor bar" will apply, we alter the rule of Keller Plastics in one respect. Drawing on the Board's decision in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), we define a reasonable period of bargaining, during which the recognition bar will apply, to be no less than 6 months after the parties' first bargaining session and no more than 1 year. In determining whether a reasonable period has elapsed in a given case, we will apply the multifactor test of Lee Lumber and impose the burden of proof on the General Counsel to show that further bargaining should be required.34


34 Under Lee Lumber, supra, the determination of whether a reasonable period of bargaining has elapsed after 6 months depends on a "multifactor analysis," which considers "(1) whether the parties are bargaining for an initial contract; (2) the complexity of the issues being negotiated and of the parties' bargaining processes; (3) the amount of time elapsed since bargaining commenced and the number of bargaining sessions; (4) the amount of progress made in negotiations and how near the parties are to concluding an agreement; and (5) whether the parties are at impasse." 334 NLRB at 402. The burden is on the General Counsel to prove that a reasonable period of bargaining had not elapsed after 6 months. Id. at 405.


NOTE: Although the board decided to ban decertification elections during this period, it still allows certification elections in the same period. Page 2: "Furthermore, despite the language in Sec. 9(c)(1)(A)(i), the Board has permitted unions to petition for an election after being voluntarily recognized in order to obtain certification and the attendant statutory advantages flowing therefrom."


[191] Dissent 357 NLRB 72: Lamons Gasket Company. National Labor Relations Board, August 26, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d458060afd7


Pages 11-12:


The majority also mischaracterizes statutory and judicial support for imposition of an election bar following voluntary recognition. The Act itself does not impose such a bar in the wake of voluntary recognition. It imposes an election bar only after there has been a valid Board election. In the same manner, the Act provides that certification of a union's representative status must be based on Board election results. In other words, in the Taft-Hartley Act, Congress, undisputedly cognizant of the practice of voluntary recognition that the majority portrays as "fully woven into the very fabric of the Act" since its inception, chose not to give voluntary recognition either election bar quality or the special protections of 9(a) certification status.


[192] Decision 351 NLRB 28: Dana Corp. National Labor Relations Board, September 29, 2007. http://www.nlrb.gov/…


Page 437:


The Board announced the recognition-bar doctrine in Keller Plastics Eastern, Inc., 157 NLRB 583 (1966). This was an unfair labor practice case in which the complaint alleged that the respondent employer unlawfully executed a collective-bargaining agreement with a minority union. It was stipulated that the employer had lawfully recognized the union based on its majority representative status, but the union no longer retained majority support when the parties executed their contract a month later. The Board, Id. at 587, dismissed the complaint, reasoning that,


like situations involving certifications, Board orders, and settlement agreements, the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining. Such negotiations can succeed, however, and the policies of the Act can thereby be effectuated, only if the parties can normally rely on the continuing representative status of the lawfully recognized union for a reasonable period of time.


Soon after Keller Plastics, the Board relied on the recognition-bar doctrine in holding that a respondent employer unlawfully withdrew its voluntary recognition of a union based on the filing of a decertification petition approximately 2-1/2 months after the recognition agreement. Universal Gear Services Corp., 157 NLRB 1169 (1966), enfd. 394 F.2d 396 (6th Cir. 1968). Then, in Sound Contractors, 162 NLRB 364 (1966), the Board said that the recognition-bar doctrine would apply in representation cases to bar the filing of election petitions for a reasonable time after voluntary recognition. Although the Board permitted the processing of a petition in Sound Contractors because the rival union filing it was engaged in organizing the employer's employees at the time the incumbent was recognized, the Board has since broadly applied the recognition bar and dismissed petitions in circumstances that raise serious questions whether employee free choice was given adequate weight.


[193] Webpage: "Decertification election." National Labor Relations Board. Accessed June 25, 2014 at http://www.nlrb.gov/…


Under certain circumstances, you can vote out or "decertify" your union, or replace it with a different union. At least 30% of your coworkers must sign cards or a petition asking the NLRB to conduct an election. Unless a majority of the votes cast in the election are in favor of union representation, the union it will be decertified. Such elections are barred, however, for one year following the union's certification by the NLRB. Plus, if your employer and union reach a collective-bargaining agreement, you cannot ask for a decertification election (or an election to bring in another union) during the first three years of that agreement, except during a 30-day "window period." That period begins 90 days and ends 60 days before the agreement expires (120 and 90 days if your employer is a healthcare institution). After a collective-bargaining agreement passes the three-year mark or expires, you may ask for an election to decertify your union or to vote in another union at any time.


[194] Book: Employment and Labor Law (7th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2001. Page 384:


Under the contract bar rule, a written labor contract—signed and binding on the parties and dealing with substantial terms and conditions of employment—bars an election among the affected bargaining unit during the life of that bargaining agreement. This rule has two exceptions. First, the Board provides a window, or "open season," during which a rival union can offer its challenge by filing an election petition. This window is open between the ninetieth day and the sixtieth day prior to the expiration of the current collective bargaining agreement. The rationale here is that a rival union should not be completely prevented from filing an election petition. Otherwise, the employer and incumbent union could continually bargain new contracts regardless of whether the employees wished to continue to be represented by the incumbent union.


If no new petition is filed during the open-season period, then the last sixty days of the contract provide a period during which the parties can negotiate a new agreement insulated from any outside challenges If a petition is filed during this insulated period, it will be dismissed as untimely. In the event that the employer and incumbent union fail to reach a new agreement and the old agreement expires, then petitions may be filed anytime after the expiration of the existing agreement.


The second exception to the contract bar rule is that a contract for longer than three years will operate only as a bar to an election for three years. In American Seating Co.,1 the Board held that an agreement of excessive duration cannot be used to preclude challenges to the incumbent union indefinitely. Therefore, any contract longer than three years duration will be treated as if it were three years long for the purposes of filing petitions; that is, the open-season period would occur between the ninetieth and the sixtieth day prior to the end of the third year of that agreement.


[195] Paper: "Union Decertification under the NLRA." By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643-694. http://scholarship.kentlaw.iit.edu/…


Pages 658-660:


In attempting to effectuate the sometimes conflicting statutory objectives of fostering stability in labor relations while according employees freedom to select representatives of their own choosing, the Board has resorted to a policy whereby the employees' ability to vote in a Board election is postponed for a certain period of time because a valid collective agreement is in effect. This doctrine, called contract bar, is premised on the belief that:


[c]ontracts established the foundation upon which stable labor relations usually are built. As they tend to eliminate strife which leads to interruptions of commerce, they are conducive to industrial peace and stability. Therefore, when such a contract has been executed by an employer and a labor organization … the postponement of the right to select a representative is warranted for a reasonable period of time.76


The Board's contract bar doctrine dates from 1939, when it was applied to postpone a representation election.77 After the passage of the Taft- Hartley Act, the doctrine was extended to decertification cases.78 The precise application of the doctrine has been modified several times, with a thorough reconsideration of the rules in a series of cases in 1958.79 The establishment of the contract bar doctrine and various rules implementing it has usually been deemed to be within the discretion of the Board as an exercise of its administrative expertise.80


Duration of the Contract


The contract bar doctrine restrains the employees' right to select their representatives at certain times, a restraint that is not mentioned in the statute. Because of this, the Board has several times considered whether the length of the contract bar was proving an unwarranted restraint of the employees' section 7 rights. … The Board further reasoned that, since the main justification for the contract bar doctrine was the promotion of industrial peace, no contract should operate as a bar unless it represented a commitment to stability in industrial relations. Hence, contracts having no fixed duration, such as contracts lacking termination or duration provisions or contracts terminable at will, do not serve as a bar to the filing of a petition.84 …


… Since many employees are likely to have only a thirty-day period once every three years in which to file for decertification, it is of utmost importance that the filing period should be easily calculated in advance, and the Board's present rules ensure that this can be done.


76. Paragon Prods. Corp., 134 N.L.R.B. 662, 663 (1961).

77. National Sugar Ref. Co., 10 N.L.R.B. 1410 (1939).

78. Snow & Neally Co., 76 N.L.R.B. 390 (1948).

79. Keystone Coat, Apron & Towel Supply Co., 121 N.L.R.B. 880 (1958); Hershey Chocolate Corp., 121 N.L.R.B. 901 (1958); Pacific Coast Ass'n of Pulp & Paper Mfrs., 121 N.L.R.B. 990 (1958); Deluxe Metal Furniture Co., 121 N.L.R.B. 995 (1958); Appalachian Shale Prods. Co., 121 N.L.R.B. 1160 (1958); General Extrusion Co., 121 N.L.R.B. 1165 (1958).

80. See, e.g., Local 1545, United Bhd. of Carpenters v. Vincent, 286 F.2d 127 (2d Cir. 1960); NLRB v. Efco Mfg., Inc., 203 F.2d 458 (1st Cir. 1953) (per curiam). …

84. 121 N.L.R.B. at 993-94.


[196] Book: The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act (Sixth Edition). Edited by John E. Higgins, Jr. Bloomberg BNA, 2012.


Page 600: "The formulation, application, and modification of the Board's contract-bar rules are committed to the Board's judgment and are not subject to ordinary judicial review."


[197] Paper: "Union Decertification under the NLRA." By Janice R. Bellace. Chicago-Kent Law Review, October 1981. Pages 643-694. http://scholarship.kentlaw.iit.edu/…


Page 650: "The Board has taken the view that an employer cannot instigate or encourage decertification, since such activity would be incompatible with the performance of his continuing statutory obligation to recognize and bargain with the union as the representative of his employees. It should be noted that this restraint on the employer's freedom of speech ceases to operate once it is decided that there exists a valid question of representation regarding the unit."


[198] "A Nationwide Survey of Union Members and Their Views on Labor Unions." Zogby International (commissioned by the Mackinac Center for Public Policy), July 20, 2004. http://www.mackinac.org/article.aspx?ID=6704


Was the union to which you belong organized before or after your current employer first hired you?


The union I belong to was organized before I was hired ….93%


The union I belong to was organized after I was hired …….7%


[199] Decision 333 NLRB 105: Levitz Furniture Co. of the Pacific. National Labor Relations Board, March 29, 2001. Decided 4-0. Majority: Truesdale, Liebman, Walsh. Concurring: Hurtgen. http://mynlrb.nlrb.gov/link/document.aspx/09031d45800c0be3


Page 728: "We adhere to the established presumption that newly hired employees support the union in the same proportion as the employees they have replaced."


[200] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: "Exclusive recognition of labor organizations." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7111


(a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.


(b) If a petition is filed with the Authority—

(1) by any person alleging—

(A) in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or

(B) in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or

(2) by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation;

the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.


(c) A labor organization which—

(1) has been designated by at least 10 percent of the employees in the unit specified in any petition filed pursuant to subsection (b) of this section;

(2) has submitted a valid copy of a current or recently expired collective bargaining agreement for the unit; or

(3) has submitted other evidence that it is the exclusive representative of the employees involved;

may intervene with respect to a petition filed pursuant to subsection (b) of this section and shall be placed on the ballot of any election under such subsection (b) with respect to the petition.


(d) The Authority shall determine who is eligible to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing employees eligible to vote the opportunity to choose—

(1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or

(2) not to be represented by a labor organization.

In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative.


[201] "Fiscal Year 2013 Performance and Accountability Report." U.S. Federal Labor Relations Authority, December 16, 2013. http://www.flra.gov/webfm_send/781


Page 25:


The Federal Service Labor-Management Relations Statute sets out a specific procedure for employees to petition to be represented by a labor union and to determine which employees will be included in a "bargaining unit" that a union represents. Implementing this procedure, the FLRA conducts secret-ballot elections for union representation and resolves a variety of issues related to questions of union representation of employees. These issues include, for example, whether particular employees are managers or "confidential" employees excluded from union representation, whether there has been election misconduct on the part of agencies or unions, and whether changes in union and agency organizations affect existing bargaining units.


[202] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: "Exclusive recognition of labor organizations." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7111


(d) The Authority shall determine who is eligible to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing employees eligible to vote the opportunity to choose—

(1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or

(2) not to be represented by a labor organization.


[203] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: "Definitions; application." Accessed June 25, 2014 at http://www.law.cornell.edu/uscode/text/5/7103


(a) For the purpose of this chapter—

(2) "employee" means an individual—

(A) employed in an agency …

(B) … but does not include—

(i) an alien or noncitizen of the United States who occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the International Communication Agency, the Agency for International Development, the Department of Agriculture, or the Department of Commerce; or

(v) any person who participates in a strike in violation of section 7311 of this title;

(3) "agency" means an Executive agency (including a nonappropriated fund instrumentality described in section 2105 (c) of this title and the Veterans' Canteen Service, Department of Veterans Affairs), the Library of Congress, the Government Printing Office, and the Smithsonian Institution but does not include—

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(C) the Central Intelligence Agency;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States Secret Service Uniformed Division.


[204] U.S. Code Title 37, Chapter 1, Section 101: "Pay and Allowances of the Uniformed Services, Definitions." Accessed January 3, 2015 at http://www.law.cornell.edu/uscode/text/37/101


(3) The term "uniformed services" means the Army, Navy, Air Force, Marine Corps, Coast Guard, National Oceanic and Atmospheric Administration, and Public Health Service.

(4) The term "armed forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard.


[205] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: "Definitions; application." Accessed June 25, 2014 at http://www.law.cornell.edu/uscode/text/5/7103


(b)

(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that—

(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and

(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.


[206] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: "Definitions; application." Accessed June 25, 2014 at http://www.law.cornell.edu/uscode/text/5/7103


(b) (2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.


[207] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7116: "Unfair labor practices." Accessed July 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7116


(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment….


(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter….

[208] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: "Exclusive recognition of labor organizations." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7111

 

[208] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: "Exclusive recognition of labor organizations." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7111


"(b) … An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held."


[209] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Pages 19-20 (in pdf):


An election may not be conducted in "any appropriate unit or subdivision thereof within which, in the preceding 12 calendar months, a valid election . . . has been held." Section 7111(b). The election bar only applies if an election is conducted and the employees do not vote for an exclusive representative, i.e., if there is no incumbent exclusive representative, another election cannot be conducted for 12 months. If there is an incumbent exclusive representative, then the certification or contract bar (see below) may apply.


• The Authority has not defined when an election is "held" or "conducted." However, in Mallinckrodt Chemical Works, the National Labor Relations Board determined that an election occurs on the date of the balloting, not the date the results are certified. 84 NLRB 291 (1949); see also NLRB v. Tri-Ex Tower Corp., 595 F.2d 1 (9th Cir. 1979).

• Although the Statute prohibits an election within one year of an election in the same unit or subdivision, it does not prohibit the election if the proposed unit is broader than the unit in the previous election. FAA, 2 A/SMLR 340 (1972).


[210] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7116: "Unfair labor practices." Accessed July 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7116


(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter….


(e) The expression of any personal view, argument, opinion or the making of any statement which—

(1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,

(2) corrects the record with respect to any false or misleading statement made by any person, or

(3) informs employees of the Government's policy relating to labor-management relations and representation,

shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions,

(A) constitute an unfair labor practice under any provision of this chapter, or

(B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.


[211] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Pages 17-18:


What standard does the Authority use to determine whether an agency has violated section 7116(a)(1)?


• The standard: Whether, under the circumstances, the statement or conduct tends to coerce or intimidate the employee, or whether the employee could reasonably have drawn a coercive inference from the statement. See U.S. Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, Ohio, 62 FLRA 199 (2007).

• This standard is objective. Id. Although the Authority considers the circumstances surrounding the statement, the standard is not based on the employee's own perceptions or on the employer's intent. Id.

• An agency may violate section 7116(a)(1) even if it has not committed other unfair labor practices or shown a general dislike for the union (referred to in Authority cases as union animus). Id.

• "If an employee has to think twice before exercising a statutory right, the employee's right has been interfered with." Dep't of the Treasury, IRS, Louisville, Ky., 11 FLRA 290, 298 (1983) (ALJ Decision adopted by FLRA without discussion).


Page 19:


Can management officials express their personal views about the union without violating the Statute?


Yes. Section 7116(e) of the Statute protects the expression of personal views….


What types of statements does section 7116(e) protect?


• If the Authority is not conducting a representational election, persons may express any personal view, argument, or opinion that contains no threat or promise of benefit and is not made under coercive conditions: Okla. City Air Logistics Ctr. (AFLC), Tinker AFB, Okla., 6 FLRA 159 (1981) (adopting the ALJ reasoning and decision). …


… In AFLC, a manager stated to his employees, "The Union isn't worth the paper it's printed on…$11.00 a month isn't worth the money invested in it….The Union has to represent you whether you are a member or not, dues are high, I hate to see you waste your money." 6 FLRA 159, 160 (1981). The statements were permissible since they were not made during a representational election, there was no threat or promise of benefit, and the comments were not made under coercive conditions because each employee had asked the manager for his opinion of the union.


[212] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 21:


Does the Statute protect employees when they are asking other employees to join the union?


• Yes, depending on the circumstances. The right to assist a union under section 7102 includes the right to solicit membership on behalf of the union. See Treasury, IRS, Ogden Serv. Ctr., 42 FLRA 1034, 1050 (1991).


• Solicitation during non-duty time: Unless there are special circumstances, a policy or ruling that prohibits employees from soliciting union membership on the agency's premises during "non-duty" time violates section 7116(a)(1) of the Statute. See Okla. City Air Logistics Ctr., AFB, Okla., 6 FLRA 159, 190 (1981). The Authority has held that "non-duty" time includes periods where employees are not required to perform their jobs, such as during breaks or a meal period, even if the employee is being paid for the break. Breaks include both scheduled breaks and unscheduled breaks allowed by management. See U.S. Dep't of the Navy, Naval Air Station, 61 FLRA 562, 564 (2006).


• Solicitation in work and non-work areas: The Statute protects solicitation in non-work areas as well as work areas if the employees being solicited are also in non-duty status, unless the solicitation would disrupt the agency's operations. See Dep't of Commerce, Bureau of the Census, 26 FLRA 311, 319 (1987).


[213] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 78:


Members who try to de-certify the union: The union can discipline its members for conduct that the Statute appears to protect. For example, a union that disciplined its steward who discussed bringing in another labor organization with the agency's personnel office and with other employees, did not violate the Statute. A labor organization is entitled to "expel a member for filing a decertification petition because it represents an attack on the very existence of the union." AFGE, 29 FLRA 1359 (1987); see Tawas Tube Products, Inc., 151 NLRB 46 (1965).


[214] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Page 20 (in pdf):


What is a contract bar?


Under 5 U.S.C. 7111(f)(3), the Authority will not certify an exclusive representative:


if there is then in effect a lawful written collective-bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless—


(A) the collective-bargaining agreement has been in effect for more than 3 years, or

(B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective-bargaining agreement.


In other words, the Authority will not process an election petition if the unit is covered by a valid contract, unless the petition is filed within the 45-day window defined in section 7111(f)(3)(B).


[215] Decision 67 FLRA 150: National Aeronautics and Space Administration, Goddard Space Flight Center, Wallops Island, Virginia (Agency) and Ronald H. Walsh (Petitioner) and American Federation Of Government Employees (Exclusive Representative). Decided 3-0. Majority: Pope, DuBester. Concurring: Pizzella. Federal Labor Relations Authority, September 19, 2014. http://www.flra.gov/decisions/v67/67-65.html


The main question before us is whether the contract bar applies to decertification petitions. Based on the wording of the Federal Service Labor-Management Relations Statute (the Statute), precedent under both Executive Order 11,491 (the executive order) and the National Labor Relations Act (the Act), several policies, and the Authority's Regulations, we find that the answer is yes. And we also find that the RD did not err in determining that the agreement is a lawful, written, collective-bargaining agreement under the Statute, and that the agreement bars the petition.


[216] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. Ten other states allow bargaining for some state and/or local employees (e.g., public safety, teachers). The remaining nine states lack collective bargaining statutes for their state and local government employees (American Federation of State County & Municipal Employees [AFSCME], 2010). In some instances, however, executive orders or local ordinances confer rights to bargain or have representation.


[217] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[218] Web page: "How to Organize a Union." Communication Workers of America. Accessed June 25, 2014 at http://www.cwa-union.org/pages/how_to_organize_a_union


"In the public sector, how you choose a union depends where you live. Some states and localities permit workers to make the choice through majority sign up. Others require a traditional union election, where majority vote decides the question."


[219] Webpage: "Public Sector Decertification Laws (as of 8/2010)." National Right to Work Legal Defense Foundation. Accessed July 4, 2014 at http://www.nrtw.org/public-sector-decertification-laws-8-1-2010


[220] Article: "Unit Determination." By Jonathan P. West. Encyclopedia of Public Administration and Public Policy, Volume 2 (K-Z). Edited by Jack Rabin. CRC Press, 2003. Page 1249:


A bargaining unit decision necessarily precedes labor-management collective bargaining, because it helps to determine whom the employers must deal with in negotiations. … At the federal level, where 2218 labor bargaining unit exists, the Federal Labor Relations Authority (FLRA) makes such determinations. In the private sector, the National Labor Relations Board sets the standards for determination of the bargaining unit. At the state level, it is often the Public Employees Relations Boards (PERBs) that make these decisions. …


Unit determination is important, because the composition and size of the unit may affect bargaining success. … Depending on the nature of the bargaining unit, it might be easy or difficult to gain majority support, recognition, or certification as the exclusive bargaining agent for employees. …


It is not uncommon for employers and unions to differ over the size and nature of the bargaining unit. From the employer's perspective, large units are often preferred. This is because it facilitates cost efficiencies when a single agreement is negotiated with a standard package rather than multiple separate bargaining contracts, each with its own unique provisions. A proliferation of units involves more negotiating sessions, heightens the probability of disruption, and adds complexity of multiple working rules and personnel practices. ….


Employees, by contrast, usually favor small unit. Smaller, more homogeneous units maximize opportunity for employee participation, may better reflect the needs and objectives of union members, amplify their voting power, foster greater solidarity, and are easier to organize.


[221] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 12:


It should be noted that a bargaining unit can include only persons who are "employees" within the meaning of the Act. The Act excludes certain individuals, such as agricultural laborers, independent contractors, supervisors, and persons in managerial positions, from the meaning of "employees." None of these individuals can be included in a bargaining unit established by the Board. In addition, the Board, as a matter of policy, excludes from bargaining units employees who act in a confidential capacity to an employer's labor relations officials.


Page 13: "Section 9(b)(1) [of the National Labor Relations Act] provides that the Board shall not approve as appropriate a unit that includes both professional and nonprofessional employees, unless a majority of the professional employees involved vote to be included in the mixed unit."


[222] U.S. Code Title 29, Chapter 7, Subchapter II, Section 152: "National Labor Relations – Definitions." Accessed March 4, 2014 at http://www.law.cornell.edu/uscode/text/29/152


When used in this subchapter— …

(3) The term "employee" … shall not include … any individual employed as a supervisor….

(11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

(12) The term "professional employee" means—

(a) any employee engaged in work

(i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work;

(ii) involving the consistent exercise of discretion and judgment in its performance;

(iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or

(b) any employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a), and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).


[223] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(b) Determination of bargaining unit by Board

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not

(1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or


[224] U.S. Code Title 29, Chapter 7, Subchapter II, Section 162: "Construction of provisions." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/164


(a) Supervisors as union members

Nothing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization, but no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.


[225] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Pages 12-13:


What is an appropriate bargaining unit. A unit of employees is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is, under the Act, left to the discretion of the NLRB. Section 9(b) states that the Board shall decide in each representation case whether, "in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof."


This broad discretion is, however, limited by several other provisions of the Act. Section 9(b)(1) provides that the Board shall not approve as appropriate a unit that includes both professional and nonprofessional employees, unless a majority of the professional employees involved vote to be included in the mixed unit.


Section 9(b)(2) provides that the Board shall not hold a proposed craft unit to be inappropriate simply because a different unit was previously approved by the Board, unless a majority of the employees in the proposed craft unit vote against being represented separately. Section 9(b)(3) prohibits the Board from including plant guards in the same unit with other employees. It also prohibits the Board from certifying a labor organization as the representative of a plant guard unit if the labor organization has members who are nonguard employees or if it is "affiliated directly or indirectly" with an organization that has members who are nonguard employees.


[226] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(b) Determination of bargaining unit by Board

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not

(1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or

(2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit vote against separate representation or

(3) decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.


[227] U.S. Code Title 29, Chapter 7, Subchapter II, Section 153: "National Labor Relations Board." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/153


"The Board is also authorized to delegate to its regional directors its powers under section 159 of this title to determine the unit appropriate for the purpose of collective bargaining…."


[228] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 12:


How the appropriateness of a unit is determined. Generally, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:


1. Any history of collective bargaining.

2. The desires of the employees concerned.

3. The extent to which the employees are organized. Section 9(c)(5) [of the National Labor Relations Act] forbids the Board from giving this factor controlling weight.


[229] "Testimony of Jennifer Jason, Former UNITE HERE Organizer." U.S. House of Representatives, Committee on Education and Labor, Subcommittee on Health, Employment, Labor and Pensions, February 8, 2007. http://www.gpo.gov/…


My name is Jen Jason. I am a former labor organizer for UNITE HERE, a union that represents more than 450,000 active members and more than 400,000 retirees throughout North America in the textile, lodging, foodservice and manufacturing industries. …


As an Organizer for UNITE, I primarily worked on and later led "card check'' organizing campaigns. …


During my tenure, I organized under U.S. labor law and in Canada under different provincially specific laws in Ontario, British Columbia, as well as Quebec and Manitoba. I was directed to organize thousands of workers using "card check'' strategies against companies such as TJ Maxx, Levi's, New Flyer Bus Company, and Cintas. …


In addition to the "housecall,'' the union frequently employs other tactics to manipulate the card numbers and add legitimacy to their organizing drive. One strategy is to manipulate unit size. One of the most common ways that we ensured the union could claim that we had reached a majority was to change the size of the group of workers we were going to organize after the drive was finished. During the blitz, workers in every department would be "housecalled,'' but if need be, certain groups of workers would be removed from the final unit, regardless of their level of union support. In doing so, the union reduced the number of cards needed to reach a majority.


[230] See also the example below about the United Food and Commercial Workers Union and the Macy's department store in Saugus, Massachusetts.


[231] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(b) Determination of bargaining unit by Board

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: …


(c) Hearings on questions affecting commerce; rules and regulations ….

(5) In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.


[232] Report: "Legislative History of the Labor Management Relations Act, 1947 (Volume I)." National Labor Relations Board, 1948.


Pages 292, 327-329:


April 11, 1947.—Committed to the Committee of the Whole House on the State of the Union and ordered to be printed


Mr. Hartley, from the Committee on Education and Labor, submitted the following REPORT [To accompany H. R 3020]


The Committee on Education and Labor, to whom was referred the bill (H. R. 3020) to prescribe fair and equitable rules of conduct to be observed by labor and management in their relations with one another which affect commerce, to protect the rights of individual workers in their relations with labor organizations whose activities affect commerce, to recognize the paramount public interest in labor disputes affecting commerce that endanger the public health, safety, or welfare, and for other purposes, having considered the same, reports favorably thereon with amendments and recommends that the bill as so amended do pass. …


Sections 9 (f) (2) and 9 (f) (3).—These two clauses concern units that the Board sets up under sections 9 (b) and 9 (d). Under these sections it is the duty of the Board to determine what group or groups of employees may appropriately be placed in any unit for which a representative sits as the exclusive bargaining agent. The act says that the Board shall determine in each case whether the "appropriate" unit is "the employer unit, craft unit, plant unit, or sub-division thereof." Under this broad grant of authority, the Board often has acted in a way that has seemed arbitrary, and it has shown little regard for distinguishable minorities that did not wish a union to represent them, and has forced many such minorities into bargaining units against their will. The Board seems to have wished to make bargaining units as large as it could, notwithstanding that its policy deprived large minorities of that freedom to decline to bargain collectively that the Labor Act and the Norris-LaGuardia Act both declare to be our national policy. (See Howard W. Metz, Labor Policy of the Federal Government, The Brookings Institution (1945), pp. 92-93.) The Board has gone far in this. Although the employees in several plants or mines may wish one union, or no union at all, to represent them, the Board may include these employees in a single unit with employees in other plants or mines who wish another union as their representative and who, by greatly outnumbering them, can force upon them a bargaining agent they do not choose. (See Matter of Pittsburgh Plate Glass Co., 10 N. L. R. B. 1470 (1939); Matter of Inland Steel Co., 9 N. L. R. B. 783 (1938); Matter of Sears, Roebuck Co., 34 N. L. R. B. 244 (1941); Matter of Alston Coal Co., 13 N. L. R. B. 683 (1939); Matter of Gulf Oil Corporation, 19 N. L. R. B. 334 (1940); Matter of Iowa Southern Utilities Co., 15 N. L. R. B. 580 (1939).)


Carrying out the national policy to assure full freedom to workers to choose, or to refuse, to bargain collectively, as they wish, is an important task for this Congress. Sections 9 (f) (2) and 9 (f) (3) are steps in carrying out that task. …


Section 9 (f) (3) strikes at a practice of the Board by which it has set up as units appropriate for bargaining whatever group or groups the petitioning union has organized at the time. Sometimes, but not always, the Board pretends to find reasons other than the extent to which the employees have organized as ground for holding such units to be appropriate (Matter of New England Spun Silk Co., 11 N. L. R. B. 852 (1939); Matter of Botany Worsted Mills, 27 N. L. R. B. 687 (1940)). While the Board may take into consideration the extent to which employees have organized, this evidence should have little weight, and, as section 9 (f) (3) provides, is not to be controlling. If, for example, a group votes itself out of a unit under section 9 (f) (2), it does not necessarily constitute a separate unit that is appropriate for the purposes of collective bargaining. The act still leaves the new Board wide discretion in setting up bargaining units.


[233] Decision 361 NLRB 4: Macy's, Inc. and Local 1445, United Food and Commercial Workers Union. National Labor Relations Board, July 22, 2014. Decided 3-1. Majority: Pearce, Hirozawa, Schiffer. Concurring: Hirozawa. Dissenting: Miscimarra. http://mynlrb.nlrb.gov/link/document.aspx/09031d45817f7387


Pages 1-2:


The Employer operates a national chain of department stores, including one in Saugus. Store Manager Danielle McKay is the highest executive at the Saugus store, and she oversees 7 sales managers who oversee 11 primary sales departments:3 juniors, ready-to-wear, women's shoes, handbags, furniture (also known as big ticket), home (also referred to as housewares), men's clothing, bridal, fine jewelry, fashion jewelry, and cosmetics and fragrances.4 Kelly Quince is the sales manager for cosmetics and fragrances.5 Quince has no regular responsibilities for the other primary sales departments, nor do the other sales managers have any regular responsibilities for the cosmetics and fragrances department.6 Of 150 total employees at the store, 120 are selling employees, and of these, 41 work in cosmetics and fragrances.


The Petitioned-For Unit: Cosmetics and Fragrances Employees


The Petitioner seeks to represent all full-time, part-time, and on-call employees employed in the Saugus store's cosmetics and fragrances department, including counter managers, beauty advisors, and all selling employees in cosmetics, women's fragrances, and men's fragrances. The parties agree that these employees should be included in the unit.7 Of the 41 employees in the petitioned-for unit, 8 are counter managers, 7 are on-call employees, and the remaining employees are cosmetics or fragrances beauty advisors.8


Page 6:


On March 24, 2011, the Petitioner [Local 1445, United Food and Commercial Workers Union] filed a petition seeking a self-determination election to determine whether Saugus employees wished to join the existing five-store unit; the petition covered all full-time and regular part-time employees at the Saugus store. See Macy's, Inc., Case 01-RC-022530 (2011) (not reported in Board volumes). 29 The Employer, however, argued that adding the Saugus employees to the existing five-store unit would be inappropriate. The Regional Director agreed with the Employer, and instead directed an election to determine whether the Saugus employees wished to be represented in a single-store unit. The Petitioner agreed to move forward with the election, but lost.


Page 19:


For the reasons explained above, we find that the cosmetics and fragrances employees are a readily identifiable group who share a community of interest among themselves. We further find that the Employer has not demonstrated that its other selling employees share an overwhelming community of interest with the cosmetics and fragrances employees. Under Specialty Healthcare, the petitioned-for unit thus constitutes an appropriate unit for bargaining.


Page 20:


Member Miscimarra, dissenting.


My colleagues find that a petitioned-for bargaining unit limited to department-store salespeople who sell cosmetics and fragrances, and excluding all other salespeople in a Macy's full-service department store, constitutes an "appropriate" bargaining unit.1 I dissent because, in my view, the facts establish that such a bargaining unit is not appropriate under any standard. …


In 2011, the Petitioner Union and the Board took the position that a bargaining unit consisting of all salespeople in the Saugus store was appropriate (there was a 2011 election among these employees, and the Union lost).


[234] Article: "Macy's Workers in Saugus, Mass., Finally Get a Voice on the Job with Local 1445." United Food and Commercial Workers Union, August 6, 2014. http://www.ufcw.org/…


"On July 31, cosmetics and fragrances workers at a Macy's store in Saugus … voted 23-18 to join Local 1445…."


[235] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 14:


Below is information about the terms of the current Presidential appointees of the NLRB.

 

   Sworn In
Mark Gaston Pearce (Chairman)  4/7/2010
Philip A. Miscimarra (Member)  8/7/2013
Kent Y. Hirozawa (Member)  8/5/2013
Nancy J. Schiffer (Member)  8/2/2013


[236] Webpage: "Chronology of Swearing-In Events." Joint Congressional Committee on Inaugural Ceremonies. Accessed August 23, 2013 at http://www.inaugural.senate.gov/swearing-in/chronology


"January 21, 2013 … Fifty-Seventh Inaugural Ceremonies … Barack H. Obama … January 20, 2009 … Fifty-Sixth Inaugural Ceremonies … Barack H. Obama"


[237] Webpage: "Board Members Since 1935." National Labor Relations Board. Accessed August 29, 2014 at http://www.nlrb.gov/who-we-are/board/board-members-1935

 

Board Members  Political Party
Mark G. Pearce  D
Nancy J. Schiffer  D
Kent Y. Hirozawa  D
Philip A. Miscimarra  R


[238] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 12: "A unit may cover the employees in one plant of an employer, or it may cover employees in two or more plants of the same employer. In some industries in which employers are grouped together in voluntary associations, a unit may include employees of two or more employers in any number of locations."


[239] Paper: "Representation Law and Procedures." American Bar Association. Last modified May 21, 2007. http://www.americanbar.org/…


Page 11:


Multi-Employer Bargaining Units - A group of Employers can agree to be bound in future collective bargaining by the group rather than by their individual actions. The consent must be objective, not based on custom or past practice. The Union's consent is also required. A Union or individual Employer can unilaterally withdraw from the Multi-Employer unit by unequivocal written notice to all parties prior to commencement of negotiations. Once negotiations have commenced, the Union or an Employer can withdraw from the unit only with the express consent of all parties.77


[240] Paper: "Determination of Appropriate Bargaining Unit by the NLRB: Principles, Rules, and Policies." By Walter L. Daykin. Fordham Law Review, 1958. http://ir.lawnet.fordham.edu/…


Pages 227-230:


MULTI-EMPLOYER UNITS


After the passage of the Taft-Hartley Act it was ruled that this statute did not require the giving of preferential treatment to separate units.58 Attempts were made to develop some standards for the establishment of multi-employer units. If the extent of organization was the only basis for such a unit the certification was generally refused. It was reasoned that the essential element for such a unit is the engagement in joint bargaining negotiations, either personally or through representatives, by a group of employers who are either members of a multi-employer association or nonmembers of such an organization.59 On the basis of this standard multi-employer units have been refused certification even though the employers were members of a trade association because they bargained with the union individually."60 It has also been ruled that there is no basis to include employees in an employer association unit if their employer does accept the association-wide contract but does not participate in the negotiations himself or through representatives.61 A multiemployer unit is not considered appropriate even though collective bargaining is conducted by an employer's association for a year if bargaining has been conducted for a longer period of time on an individual-employer basis.62


The justifications for the refusal to accept multi-employer units contained in the Armour Co. ruling63 summarize the Board's point of view relative to this problem. In this case the existence of multi-plant contracts covering the employees of four meat packing companies did not bar the establishing of single plant units in the industry. It was argued that no distinct or special community of interest existed between the employees in the plants, there was no interchange of employees, no administrative or functional grouping was involved, no pattern of multi-plant bargaining had been established in the industry and the multi-plant contracts failed to reveal any distinct intention on the part of participants that they desired to eliminate the original plant units.


It has been decided that if an employer withdraws from an association and makes it known that he desires to bargain on an individual basis then a single-employer unit is appropriate.64 An employer can withdraw entirely from a multi-employer bargaining unit at the appropriate time. He cannot partially withdraw and remove from the larger unit some of his employees covered by the multi-employer agreement.65 For example, an employer cannot remove his drivers from the association-wide unit and continue to bargain on the association-wide basis for his production workers.66 In order to protect the stability of collective bargaining, a single employer-unit was denied where a multi-employer contract existed even though the employer had intended to function on an individual basis in the area of labor relations.67


On the other hand, multi-employer units have been considered appropriate even in the absence of employer associations or any formal organization when employers participate in collective bargaining through delegated representatives or negotiating committees as a group and not on an individual basis," and the results of the bargaining are incorporated in separate contracts" or if the employers desire to be governed by the joint group action rather than bargain on an individual basis.70 Maintenance employees who cannot constitute an appropriate bargaining unit are permitted to be included in a multi-employer unit if the employees are governed by the same contractual arrangement negotiated for similar employees who are in the broad unit.71


[241] Decision 357 NLRB 83: Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9. National Labor Relations Board, August 26, 2011. Decided 3-1. Majority: Liebman, Becker, Pearce. Dissenting: Hayes. http://www.ballardspahr.com/…


Pages 10-11:


Nor is a unit inappropriate simply because it is small.23 The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate.24 As the Supreme Court has observed, "A cohesive unit—one relatively free of conflicts of interest—serves the Act's purpose of effective collective bargaining, Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 165 (1941), and prevents a minority interest group from being submerged in an overly large unit, Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172–173 (1971)." NLRB v. Action Automotive, 469 U.S. at 494 (parallel citations omitted). The Board has articulated a "polic[y] of not compelling labor organizations to seek representation in the most comprehensive grouping." Mc-Mor-Han Trucking Co., 166 NLRB at 701. "A union is, therefore, not required to request representation in the most comprehensive or largest unit of employees of an employer unless 'an appropriate unit compatible with that requested unit does not exist.' " Overnite, 322 NLRB at 723–724 (citations omitted); see also Federal Electric Corp., 157 NLRB at 1132. "The issue," the Board recently made clear, "is not whether there are too few or too many employees in the unit." Wheeling Island Gaming, 355 NLRB No. 127, slip op. at 1 fn. 2 (2010).


23 In fact, the proposed unit of CNAs in this case is over twice the median size of units found appropriate prior to Board-supervised elections in the last decade. 76 Fed. Reg. 36821 (June 22, 2011) (stating that median unit size from 2001 to 2010 has been 23–26 employees).

24 Only in the case of a unit composed of a single employee is small size disqualifying. See, e.g., Mount St. Joseph's Home for Girls, 229 NLRB 251, 252 (1977); Luckenbach Steamship Co., 2 NLRB 181, 193 (1936) ("the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain"). But the Act permits the Board to find a unit appropriate so long as it contains more than one eligible employee. Id.; Copier Care Plus, 324 NLRB 785 (1997) (two-person unit); Sonoma-Marin Publishing Co., 172 NLRB 625 (1968) (three-person unit at time of certification).


[242] Article: "Five-Member Board Called 'Ready to Go' As NLRB Transitions to New General Counsel." By Lawrence E. Dubé. Bloomberg BNA, November 13, 2013. http://www.bna.com/fivemember-board-called-n17179880077/


"Richard F. Griffin (D), who was sworn in Monday as the NLRB's general counsel, spoke to the ABA group along with Lafe E. Solomon (D), who was acting general counsel for more than three years. … As early as the 1940s, Griffin said, NLRB approved bargaining units consisting of as few as two employees where appropriate."


[243] Article: "U.S. labor agency approves 'micro-unit' in Macy's bargaining case." By Amanda Becker. Reuters, July 24, 2015. http://www.reuters.com/…


Business groups and employers said the decision was a shift in NLRB policy that would allow so-called micro-unions to proliferate and fracture workplace relations. …


Macy's said that a more appropriate bargaining unit would be all store employees or all sales employees at that location. It said that if only cosmetics and fragrances workers unionize, there could be a "proliferation of micro-units" based on the products sold by employees.


[244] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 13: "Finally, with regard to units in the health care industry, the Board also is guided by Congress' concern about preventing disruptions in the delivery of health care services, and its directive to minimize the number of appropriate bargaining units."


[245] Code of Federal Regulations Title 29, Subtitle B, Chapter I, Part 103, Subpart C: "Appropriate bargaining units in the health care industry." Accessed June 21, 2014 at http://www.law.cornell.edu/cfr/text/29/103.30


(a) This portion of the rule shall be applicable to acute care hospitals, as defined in paragraph (f) of this section: Except in extraordinary circumstances and in circumstances in which there are existing non-conforming units, the following shall be appropriate units, and the only appropriate units, for petitions filed pursuant to section 9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations Act, as amended, except that, if sought by labor organizations, various combinations of units may also be appropriate:

(1) All registered nurses.

(2) All physicians.

(3) All professionals except for registered nurses and physicians.

(4) All technical employees.

(5) All skilled maintenance employees.

(6) All business office clerical employees.

(7) All guards.

(8) All nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards.

Provided That a unit of five or fewer employees shall constitute an extraordinary circumstance.


(b) Where extraordinary circumstances exist, the Board shall determine appropriate units by adjudication. …


(f) For purposes of this rule, the term:

(1) Hospital is defined in the same manner as defined in the Medicare Act, which definition is incorporated herein (currently set forth in 42 U.S.C. 1395x(e), as revised 1988);

(2) Acute care hospital is defined as: either a short term care hospital in which the average length of patient stay is less than thirty days, or a short term care hospital in which over 50% of all patients are admitted to units where the average length of patient stay is less than thirty days. Average length of stay shall be determined by reference to the most recent twelve month period preceding receipt of a representation petition for which data is readily available. The term "acute care hospital" shall include those hospitals operating as acute care facilities even if those hospitals provide such services as, for example, long term care, outpatient care, psychiatric care, or rehabilitative care, but shall exclude facilities that are primarily nursing homes, primarily psychiatric hospitals, or primarily rehabilitation hospitals. Where, after issuance of a subpoena, an employer does not produce records sufficient for the Board to determine the facts, the Board may presume the employer is an acute care hospital. …


(g) Appropriate units in all other health care facilities: The Board will determine appropriate units in other health care facilities, as defined in section 2(14) of the National Labor Relations Act, as amended, by adjudication.

[54 FR 16347, Apr. 21, 1989]


[246] Article: "Unit Determination." By Jonathan P. West. Encyclopedia of Public Administration and Public Policy, Volume 2 (K-Z). Edited by Jack Rabin. CRC Press, 2003.


Page 1249: "At the federal level, where 2218 labor bargaining unit exists, the Federal Labor Relations Authority (FLRA) makes such determinations."


[247] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Pages 10-12 (in pdf):


What standard does the Authority use to determine whether a unit is appropriate?


The standard: The Authority examines whether the unit would:


1. Ensure a clear and identifiable community of interest among employees in the unit;

2. Promote effective dealings with the agency; and

3. Promote efficiency of the operations of the agency. …


• The Authority applies these three criteria on a case-by-case basis. …


• The Authority has not specified the weight of individual factors or a particular number of factors necessary to establish an appropriate unit. …


How does the Authority assess whether the unit would ensure a clear and identifiable community of interest among employees in the unit?


A community of interest involves a commonality or sharing of interests between employees in a unit. This ensures that employees can deal collectively with management as a single group. …


• The Authority considers factors such as whether the employees in the proposed unit:

o Are part of the same organizational component of the agency;

o Support the same mission;

o Are subject to the same chain of command;

o Have similar or related duties, job titles, and work assignments;

o Are subject to the same general working conditions; and

o Are governed by the same personnel and labor relations policies that are administered by the same personnel office. …


• Other factors may also bear on this inquiry. For example:


o Geographic proximity;

o Unique conditions of employment;

o Distinct local concerns;

o Degree of interchange between other organizational components; and

o Functional or operational separation. …


How does the Authority assess whether the unit would promote effective dealings with the agency?


The requirement that the unit promote effective dealings concerns the relationship between management and the exclusive representative selected by unit employees. …


In assessing this requirement, the Authority examines factors such as:


• The efficient use of resources that might be derived from inclusion of other units;

• The parties' past collective-bargaining experience;

• The locus and scope of authority of the responsible personnel office administering personnel policies covering employees in the proposed unit;

• The limitations, if any, on the negotiation of matters of critical concern to employees in the proposed unit; and

• The level at which labor relations policy is set in the agency. Id.


How does the Authority assess whether the unit would promote the efficiency of agency operations?


The Authority examines the degree to which the unit structure bears a rational relationship to the operational and organizational structure of the agency. See 82nd Training Wing, 57 FLRA at 156-57.


This inquiry considers the effect of the proposed unit on the agency's operations in terms of cost, productivity, and use of resources. Id.


Must the unit be the most or the only appropriate unit?


No. The Statute does not require that the unit be the most or the only appropriate unit. The proposed unit meets the requirements if it is an appropriate unit. …


[248] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: "Determination of appropriate units for labor organization representation." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7112


(a) The [Federal Labor Relations] Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.


[249] U.S. Code Title 29, Chapter 7, Subchapter II: "National Labor Relations Act." Accessed March 4, 2014 at http://www.law.cornell.edu/uscode/text/29/chapter-7/subchapter-II


NOTE: Just Facts scanned this entire act and found nothing approximating this provision in the footnote directly above. Furthermore, none of the multiple footnotes above give any indication of such a provision for the private sector.


[250] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Page 14 (in pdf): " Can a small unit be considered appropriate? Yes. See 82nd Training Wing, 57 FLRA at 154, 156-57 (four person unit appropriate). But the Authority has a preference for preventing unit fragmentation. See Fleet & Family, 64 at 787 (small unit of 31 employees would result in artificial, unwarranted fragmentation). See also Edwards AFB, 35 FLRA at 1314."


[251] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: "Determination of appropriate units for labor organization representation." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7112


"(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized…."


[252] Report: "Representation Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, April 10, 2013. http://www.flra.gov/webfm_send/695


Page 15 (in pdf):


Do bargaining units which include supervisors or management officials exist in the federal sector?


Yes. Under section 7112(b)(1) of the Statute, supervisors and management officials may not be in bargaining units, with one exception, found in 5 U.S.C. § 7135(a). Section 7135(a) provides for the:


"continuation or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter."


• The Authority will permit exclusive recognition in a unit consisting solely of supervisors in very limited circumstances in which a labor organization has:

a) traditionally or historically represented units of supervisors in private industry and

b) held exclusive recognition for a unit of supervisors in a federal agency on the effective date of the Statute.

See Dep't of Energy, W. Area Power Admin., Golden, Colo., 38 FLRA 935, 940 (1990) (citing Dep't of the Navy, 10 FLRA 396, 397 (1982)).


• Courts have rejected the Authority's view that § 7135(a)(2) permits mixed units of both supervisory and nonsupervisory personnel. U.S. Dep't of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989).

Under § 7112(b)(1), supervisors must be excluded from bargaining units unless their inclusion is expressly authorized by § 7135(a)(2). Because § 7135(a)(2) refers to "units of" supervisors, "supervisors is the whole set," and the term cannot refer to units that include anything other than supervisors. Id. at 1167. Therefore, the Authority may "recognize only exclusive units of supervisors, not mixed units." Id.


[253] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7112: "Determination of appropriate units for labor organization representation." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7112


(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes—

(1) except as provided under section 7135 (a)(2) of this title, any management official or supervisor;

(2) a confidential employee;

(3) an employee engaged in personnel work in other than a purely clerical capacity;

(4) an employee engaged in administering the provisions of this chapter;

(5) both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit;

(6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or

(7) any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity.


[254] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7103: "Definitions; application." Accessed June 25, 2014 at http://www.law.cornell.edu/uscode/text/5/7103


(a) For the purpose of this chapter— …

(10) "supervisor" means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term "supervisor" includes only those individuals who devote a preponderance of their employment time to exercising such authority;

(11) "management official" means an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency; …

(15) "professional employee" means—

(A) an employee engaged in the performance of work—

(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);

(ii) requiring the consistent exercise of discretion and judgment in its performance;

(iii) which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and

(iv) which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time; or

(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A)(i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph;


[255] Article: "Unit Determination." By Jonathan P. West. Encyclopedia of Public Administration and Public Policy, Volume 2 (K-Z). Edited by Jack Rabin. CRC Press, 2003.


Page 1249: "At the state level, it is often the Public Employees Relations Boards (PERBs) that make these [bargaining unit] decisions."


[256] Handbook on Human Service Administration. Edited by Jack Rabin and Marcia B. Steinhauer. CRC Press, 1988. Chapter 7: "Personnel Management." By Donald E. Klingner.


Page 318:


Several issues are of particular interest regarding laws governing state employees, including bargaining unit determination, the role of supervisors in bargaining units, and strikes. Each of these will now be examined.


The issue of bargaining units is extremely critical, as it is in all other industries, but particularly in government services with a diverse range of employees and professions. The key is to develop units which are neither too small nor too large. A proliferation of small units develops a situation that is fragmented for workers and the organization. With many smaller units, more specific issues come to the forefront from special-interest groups, but the disadvantage is that the smaller groups often have less bargaining clout. Management must also face the prospect of an overbearing number of contract bargaining sessions.


[257] Ruling 208 U.S. 161: Adair v. United States. U.S. Supreme Court, January 27, 1908. Decided 6-2. Harlan, Brewer, White, Peckham, Day, Fuller. Dissenting: McKenna, Holmes. http://www.law.cornell.edu/supremecourt/text/208/161


Majority:


This case involves the constitutionality of certain provisions of the act of Congress of June 1, 1898, 30 Stat. 424, c. 370, concerning carriers engaged in interstate commerce and their employees. …


The 10th section, upon which the present prosecution is based, is in these words:


That any employer subject to the provisions of this act and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from such fund beyond the proportion of the benefit arising from the employer's contribution to such fund; or who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars. …


The first inquiry is whether the part of the tenth section of the act of 1898 upon which the first count of the indictment was based is repugnant to the Fifth Amendment of the Constitution declaring that no person shall be deprived of liberty or property without due process of law. In our opinion, that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one's own labor; each right, however; being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good. This court has said that, in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. …


It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and if he is wrongfully deprived of this right by others, he is entitled to redress. …


The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. … In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. …


While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law are subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government -- at least in the absence of contract between the parties -- to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. It was the legal right of the defendant Adair -- however unwise such a course might have been -- to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so -- however unwise such a course on his part might have been -- to quit the service in which he was engaged because the defendant employed some persons who were not members of a labor organization. In all such particulars, the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.


[258] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer— …

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…


(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents …

(1) to restrain or coerce

(A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or …

(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; …


[259] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: "Representatives and elections." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/157


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 as authorized in section 158 (a)(3) of this title.


[260] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


Sec. 7. 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 concerted activities, for the purpose of collective bargaining or other mutual aid or protection.


Sec. 8. It shall be an unfair labor practice for an employer--

(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.

(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it….

(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this Act, or in the National Industrial Recovery Act … as amended from time to time, or in any code or agreement approved or prescribed thereunder, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this Act as an unfair labor practice) to require as a condition of employment membership therein, if such labor organization is the representative of the employees as provided in section 9(a), in the appropriate collective bargaining unit covered by such agreement when made.


[261] Ruling 301 U.S. 1: National Labor Relations Board v. Jones and Laughlin Steel. U.S. Supreme Court, April 12, 1937. Decided 5-4. Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter. http://caselaw.lp.findlaw.com/…


Majority:


Second. The Unfair Labor Practices in Question.-The unfair labor practices found by the Board are those defined in section 8, subdivisions ( 1) and (3). These provide:


'Sec. 8. It shall be an unfair labor practice for an employer-

'(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (section 157 of this title). …

'(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.' …


Section 8, subdivision (1), refers to section 7, which is as follows:


'Section 7. 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 concerted activities for the purpose of collective bargaining or other mutual aid or protection.'


Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.


That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents. Discrimination and coercion to prevent the free exercise of the right of employees to self-organization and representation is a proper subject for condemnation by competent legislative authority. Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that, if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; that union was essential to give laborers opportunity to deal on an equality with their employer. … We reiterated these views when we had under consideration the Railway Labor Act of 1926, 44 Stat. 577. Fully recognizing the legality of collective action on the part of employees in order to safeguard their proper interests, we said that Congress was not required to ignore this right but could safeguard it. Congress could seek to make appropriate collective action of employees an instrument of peace rather than of strife. We said that such collective action would be a mockery if representation were made futile by interference with freedom of choice. Hence the prohibition by Congress of interference with the selection of representatives for the purpose of negotiation and conference between employers and employees, 'instead of being an invasion of the constitutional right of either, was based on the recognition of the rights of both.' …


The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. …


Our conclusion is that the order of the Board was within its competency and that the act is valid as here applied. The judgment of the Circuit Court of Appeals is reversed and the cause is remanded for further proceedings in conformity with this opinion. It is so ordered.


[262] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


[263] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


Sec. 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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer.


[264] Fifth Amendment to the Constitution of the United States. Ratified December 15, 1791. http://justfacts.com/constitution.asp#Amendment5


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


[265] Ruling 301 U.S. 1: National Labor Relations Board v. Jones and Laughlin Steel. U.S. Supreme Court, April 12, 1937. Decided 5-4. Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting: McReynolds, Butler, Sutherland, Van Devanter.

http://caselaw.lp.findlaw.com/…


Contesting the ruling of the Board, the respondent argues … that the provisions of the act violate section 2 of article 3 and the Fifth and Seventh Amendments of the Constitution of the United States. …


We think it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority. …


Questions under the Due Process Clause and Other Constitutional Restrictions …


The provision of section 9(a)10 that representatives, for the purpose of collective bargaining, of the majority of the employees in an appropriate unit shall be the exclusive representatives of all the employees in that unit, imposes upon the respondent only the duty of conferring and negotiating with the authorized representatives of its employees for the purpose of settling a labor dispute. This provision has its analogue in section 2, Ninth, of the Railway Labor Act, as amended (45 U.S.C.A. 152, subd. 9), which was under consideration in Virginian Railway Co. v. System Federation No. 40, supra. The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with any one other than their true representative as ascertained in accordance with the provisions of the act. We said that the obligation to treat with the true representative was exclusive and hence imposed the negative duty to treat with no other. We also pointed out that, as conceded by the government,11 the injunction [301 U.S. 1, 45] against the company's entering into any contract concerning rules, rates of pay and working conditions except with a chosen representative was 'designed only to prevent collective bargaining with any one purporting to represent employees' other than the representative they had selected. It was taken 'to prohibit the negotiation of labor contracts, generally applicable to employees' in the described unit with any other representative than the one so chosen, 'but not as precluding such individual contracts' as the company might 'elect to make directly with individual employees.' We think this construction also applies to section 9(a) of the National Labor Relations Act (29 U.S.C.A. 159(a).


The act does not compel agreements between employers and employees. It does not compel any agreement whatever. It does not prevent the employer 'from refusing to make a collective contract and hiring individuals on whatever terms' the employer 'may by unilateral action determine.'12


11 See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 600, note 6, decided March 29, 1937.

12 See note 11.


[266] Ruling 300 U.S. 515: Virginian Railway Co. v. Federation. U.S. Supreme Court, March 29, 1937. Decided 9-0. http://caselaw.lp.findlaw.com/…


Petitioner's insistence that the statutes does not warrant so much of the decree as forbids it to enter into contracts of employment with its individual employees is based upon a misconstruction of the decree. Both the statute and the decree are aimed at securing settlement of labor disputes by inducing collective bargaining with the true representative of the employees and by preventing such bargaining with any who do not represent them. The obligation imposed on the employer by section 2, Ninth ( 45 U.S.C.A. 152, subd. 9), to treat with the true representative of the employees as designated by the Mediation Board, when read in the light of the declared purposes of the act, and of the provisions of section 2, Third and Fourth (45 U.S.C.A. 152, subds. 3, 4), giving to the employees the right to organize and bargain collectively through the representative of their own selection, is exclusive. It imposes the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other. We think, as the government concedes in its brief,6 that [300 U.S. 515 , 549] the injunction against petitioner's entering into any contract concerning rules, rates of pay, and working conditions, except with respondent, is designed only to prevent collective bargaining with any one purporting to represent employees, other than respondent, who has been ascertained to be their true representative. When read in its context, it must be taken to prohibit the negotiation of labor contracts, generally applicable to employees in the mechanical department, with any representative other than respondent, but not as precluding such individual contracts as petitioner may elect to make directly with individual employees. The decree, thus construed, conforms, in both its affirmative and negative aspects, to the requirements of section 2. …


6 (Note 35a.) 'The Government interprets the negative obligations imposed by the statute and decree as having the following effect:


'When the majority of a craft or class has (either by secret ballot or otherwise) selected a representative, the carrier cannot make with anyone other than the representative a collective contract (i.e., a contract which sets rates of pay, rules, or working conditions), whether the contract covers the class as a whole or a part thereof. Neither the statute nor the decree prevents the carrier from refusing to make a collective contract and hiring individuals on whatever terms the carrier may by unilateral action determine. In hirings of that sort the individual does not deal in a representative capacity with the carrier and the hiring does not set general rates of pay, rules, or working conditions. Of course, as a matter of voluntary action, not as a result of the statute or the decree, the carrier may contract with the duly designated representative to hire individuals only on the terms of a collective understanding between the carrier and the representative; but any such agreement would be entirely voluntary on the carrier's part and would in no sense be compelled.


'If the majority of a craft or class has not selected a representative, the carrier is free to make with anyone it pleases and for any group it pleases contracts establishing rates of pay, rules, or working conditions.'


[267] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


[268] Article: "Roosevelt, Franklin Delano." Contributor: James T. Patterson (Ph.D., Professor of History, Brown University). World Book Encyclopedia, 2007 Deluxe Edition.


"By 1944, so many justices had retired or died that all but two Court members were Roosevelt appointees."


NOTE: For details on FDR's strategy to pack the Supreme Court with Justices who would uphold the legislation he supported, see Just Facts' research on Social Spending.


[269] Webpage: "Members of the Supreme Court of the United States." U.S. Supreme Court. Accessed October 6, 2014 at http://www.supremecourt.gov/about/members_text.aspx

 

Name

 Appointed by

President

 Judicial Oath

Taken

 Date Service

Terminated

Black, Hugo  Roosevelt, F.  August 19,

1937

 September 17,

1971

Reed, Stanley  Roosevelt, F.  January 31,

1938

 February 25,

1957

Frankfurter, Felix  Roosevelt, F.  January 30,

1939

 August 28,

1962

Douglas, William  Roosevelt, F.  April 17,

1939

 November 12,

1975

Murphy, Frank  Roosevelt, F.  February 5,

1940

 July 19,

1949

Byrnes, James  Roosevelt, F.  July 8,

1941

 October 3,

1942

Jackson, Robert  Roosevelt, F.  July 11,

1941

 October 9,

1954

Rutledge, Wiley  Roosevelt, F.  February 15,

1943

 September 10,

1949


[270] Ruling 321 U.S. 332: J.I. Case Co. v. National Labor Relations Board. U.S. Supreme Court, February 28, 1944. Decided 8-1. Majority: Stone, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge. Dissenting: Roberts. https://supreme.justia.com/cases/federal/us/321/332/case.html


Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices." National Licorice Co. v. Labor Board, 309 U. S. 350, 309 U. S. 364. Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility.


It is equally clear, since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment.


But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages. Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices. The workman is free, if he values his own bargaining position more than that of the group, to vote against [union] representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. We cannot except individual contracts generally from the operation of collective ones because some may be more individually advantageous. Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.


It also is urged that such individual contracts may embody matters that are not necessarily included within the statutory scope of collective bargaining, such as stock purchase, group insurance, hospitalization, or medical attention. We know of nothing to prevent the employee's, because he is an employee, making any contract provided it is not inconsistent with a collective agreement or does not amount to or result from or is not part of an unfair labor practice. But, in so doing, the employer may not incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in the matters covered by collective agreement.


[271] Paper: "The Antitrust Laws and Labor." Fordham Law Review, January 1962. Pages 759-775. http://ir.lawnet.fordham.edu/…


Page 760:


Monopoly power has been defined as the power to fix prices or to exclude competition.11 On this basis, there can be no doubt that unions possess such capabilities. It is of the very nature and purpose of every labor organization that it be able to eliminate competition in the labor market.12 It is only when labor possesses this monopoly power in the labor market that a range for collective bargaining appears at all. Since the employer is a powerful single unit on his side, while the employee is typically a very small part of the larger aggregate, there is clearly an overwhelming case for sanctioning collective action by labor in an effort to establish a single unit to negotiate with management.13 Thus, it is not suggested that the antitrust laws should be applied to the labor market as such.14


[272] Paper: "Labor's Love Lost? Changes in the U.S. Environment and Declining Private Sector Unionism." By Edward E. Potter. Journal of Labor Research, Spring 2001. Pages 321-334. http://link.springer.com/article/10.1007%2Fs12122-001-1037-4


Page 321: "Unions are unique to our society because, under the National Labor Relations Act they are given an exclusive franchise to organize individuals in the workplace for purposes of representation and negotiating terms and conditions of employment. No other nongovernmental organization is given such a monopoly or express procedures for establishing its exclusive representation status."


[273] Book: The Labor Relations Process (9th edition). By William H. Holley, Jr., Kenneth M. Jennings, and Roger S. Wolters. South-Western Cengage Learning, 2008.


Page 653: "In the United States, the exclusive bargaining representative has a monopoly over all employee bargaining, and the employer is required to bargain only with the legally certified union. In Western Europe, the employer often bargains with a number of unions in addition to worker councils elected by the employees."


[274] Email: Raymond J. LaJeunesse, Jr. (Vice President and Legal Director of the National Right to Work Legal Defense Foundation) to James D. Agresti (President of Just Facts), September 10, 2014.


Question (Just Facts): Are you aware of a case in which an employer insisted on negotiating an initial contract without an exclusive bargaining provision with a union certified under an NLRB election that insisted on an exclusive bargaining provision? If so, how did the NLRB/courts rule?


Answer (NRTW): No. However, such an employer would undoubtedly be held to have committed an unfair labor practice.


Question (Just Facts): Are there any contracts currently in force that do not contain an exclusive bargaining provision between an employer and union certified under an NLRB election?


Answer: Not to my knowledge. We of course do not have access to all of the thousands of union contracts around the country.


Question (Just Facts): Does the NLRA's exclusive bargaining requirement also apply to unions established outside of an NLRB secret ballot election (like card check)? Based upon my reading, it seems that it does.


Answer (NRTW):Yes.


Question (Just Facts): Generally speaking, in what types of situations are non-exclusive bargaining contracts permissible?


Answer (NRTW): When an employer and union that has not been certified as exclusive bargaining agent voluntarily enter into such a contract.


[275] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7111: "Exclusive recognition of labor organizations." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7111


(a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election. …


(d) … A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative.


[276] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7114: "Representation rights and duties." Accessed October 9, 2014 at http://www.law.cornell.edu/uscode/text/5/7114


(a) (1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.


[277] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 80: "All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees."


[278] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. Ten other states allow bargaining for some state and/or local employees (e.g., public safety, teachers). The remaining nine states lack collective bargaining statutes for their state and local government employees (American Federation of State County & Municipal Employees [AFSCME], 2010). In some instances, however, executive orders or local ordinances confer rights to bargain or have representation.


[279] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[280] News release: "Union Members Summary." U.S. Bureau of Labor Statistics, January 24, 2014. http://www.bls.gov/news.release/pdf/union2.pdf


Page 2: "In 2013, 16.0 million wage and salary workers were represented by a union. This group includes both union members (14.5 million) and workers who report no union affiliation but whose jobs are covered by a union contract (1.5 million)."


Page 4:


The estimates in this release are obtained from the Current Population Survey (CPS), which provides the basic information on the labor force, employment, and unemployment. The survey is conducted monthly for the Bureau of Labor Statistics by the U.S. Census Bureau from a scientifically selected national sample of about 60,000 eligible households. The union membership and earnings data are tabulated from one-quarter of the CPS monthly sample and are limited to wage and salary workers. All self-employed workers are excluded. …


Union membership rate. Data refer to the proportion of total wage and salary workers who are union members.


Represented by unions. Data refer to both union members and workers who report no union affiliation but whose jobs are covered by a union or an employee association contract.


CALCULATION: 1.5 / 16.0 = 9.4%


[281] Questionnaire: "Current Population Survey (CPS): Labor Force Items." U.S. Census Bureau. Last revised April 22, 2013. http://www.census.gov/cps/methodology/questions.html


What is the name of the (company/non-profit organization) for which (you/he/she) work (at main job)/worked (at main job)/works (at main job) (work/works/worked)


… What is the name of the government agency for which (you/he/she) (work/works)


… On this job, (are / is) (name/you) a member of a labor union or of an employee association similar to a union?

1 Yes

2 No


… On this job, (are / is) (name/you) covered by a union or employee association contract?

1 Yes

2 No


[282] Calculated with data from: "Table 3. Union affiliation of employed wage and salary workers by occupation and industry (Numbers in thousands)." U.S. Department of Labor, Bureau of Labor Statistics. Accessed 2/14/2014 at http://www.bls.gov/webapps/legacy/cpslutab3.htm


NOTE: An Excel file containing the data and calculations is available upon request.


[283] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: "Representatives and elections." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/157


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 as authorized in section 158 (a)(3) of this title.


NOTE: See next footnote for section 158 (a)(3).


[284] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer— …

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement….


[285] Public Law 80-101: "Labor Management Relations Act of 1947" (a.k.a "Taft-Hartley Act"). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. http://www.fofweb.com/…


Rights of Employees

Sec. 7. 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 as authorized in section 8(a)(3).


[286] Ruling 373 U.S. 734: National Labor Relations Board v. General Motors Corporation. U.S. Supreme Court, June 3, 1963. Decided 8-0: White, Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart. http://www.law.cornell.edu/supremecourt/text/373/734


Moreover, the 1947 amendments [of the Taft-Hartley Act] not only abolished the closed shop but also made significant alterations in the meaning of 'membership' for the purposes of union-security contracts. Under the second proviso to § 8(a)(3), the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues. 'Membership' as a condition of employment is whittled down to its financial core. This Court has said as much before in Radio Officers' Union v. Labor Board, 347 U.S. 17, 41, 74 S.Ct. 323, 336, 98 L.Ed. 455:


'This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus Congress recognized the validity of unions' concern about 'free riders,' i.e., employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason. … '


[287] Book: Labor and Employment Law: Text & Cases (15th edition). By David Twomey. South-Western Cengage Learning, 2007.


Page 167: "The union shop agreement permitted by Section(a)(3) does not require full union membership, but only dues-paying membership."


[288] Ruling 473 U.S. 95: Pattern Makers' League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6-3. Majority: Powell, Burger, White, Rehnquist, O'Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. http://caselaw.lp.findlaw.com/…


Closed shop agreements, legalized by the Wagner Act in 1935,15 became quite common in the early 1940's. Under these agreements, employers could hire and retain in their employ only union members in good standing. R. Gorman, Labor Law, ch. 28, 1, p. 639 (1976). Full union membership was thus compulsory in a closed shop; in order to keep their jobs, employees were required to attend union meetings, support union leaders, and otherwise adhere to union rules. Because of mounting objections to the closed shop, in 1947 - after hearings and full consideration - Congress enacted the Taft-Hartley Act. Section 8(a)(3) of that Act effectively eliminated compulsory union membership by outlawing the closed shop. The union security agreements permitted by 8(a)(3) require employees to pay dues, but an employee cannot be discharged for failing to abide by union rules or policies with which he disagrees.16


Full union membership thus no longer can be a requirement of employment. If a new employee refuses formally to join a union and subject himself to its discipline, he cannot be fired. Moreover, no employee can be discharged if he initially joins a union, and subsequently resigns. We think it noteworthy that 8(a)(3) protects the employment rights of the dissatisfied member, as well as those of the worker who never assumed full union membership. By allowing employees to resign from a union at any time, 8(a)(3) protects the employee whose views come to diverge from those of his union.


[289] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 13:


Examples of employee rights under the NLRA [National Labor Relations Act] are:


• Forming, or attempting to form, a union among the employees of an employer

• Joining a union whether the union is recognized by the employer or not

• Assisting a union in organizing employees

• Engaging in protected concerted activities. Generally, "protected concerted activity" is group activity that seeks to change wages or working conditions.

• Refusing to do any or all of these things. However, the union and employer, in a State where such agreements are permitted, may enter into a lawful union-security clause requiring employees to pay union dues and fees.


[290] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 9:


The Act permits, under certain conditions, a union and an employer to make an agreement, called a union-security agreement, that requires employees to make certain payments to the union in order to retain their jobs. A union-security agreement cannot require that applicants for employment be members of the union in order to be hired, and such an agreement cannot require employees to join or maintain membership in the union in order to retain their jobs. Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a "grace period") after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union's costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).


Union-security agreements. The grace period, after which the union-security agreement becomes effective, cannot be less than 30 days except in the building and construction industry. The Act allows a shorter grace period of 7 full days in the building and construction industry (Section 8(f). A union-security agreement that provides a shorter grace period than the law allows is invalid, and any employee discharged because he or she has not complied with such an agreement is entitled to reinstatement.


[291] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 9:


Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who actually join the union, to pay full initiation fees and dues within a certain period of time (a "grace period") after the collective-bargaining contract takes effect or after a new employee is hired. However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union's costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).


[292] Ruling 487 U.S. 735: Communications Workers v. Beck. U.S. Supreme Court, June 29, 1988. Decided 5-3. Majority: Brennan, Rehnquist, White, Marshall, Stevens. Dissenting in part: Blackmun, O'Connor, Scalia. http://caselaw.lp.findlaw.com/…


Majority:


Section 8(a)(3) of the National Labor Relations Act of 1935 (NLRA), 49 Stat. 452, as amended, 29 U.S.C. 158(a)(3), permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members. Today we must decide whether this provision also permits a union, over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union's duty of fair representation or the objecting employees' First Amendment rights. …


At the outset, we address briefly the jurisdictional question that divided the Court of Appeals. Respondents sought relief on three separate federal claims: that the exaction of fees beyond those necessary to finance collective-bargaining activities violates 8(a)(3); that such exactions violate the judicially created duty of fair representation; and that such exactions violate respondents' First Amendment rights. …


Taken as a whole, 8(a)(3) permits an employer and a union2 to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the "membership" that may be so required has been "whittled down to its financial core." NLRB v. General Motors Corp., 373 U.S. 734, 742 (1963). The statutory question presented in this case, then, is whether this "financial core" includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not. …


… Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost.


[293] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


After employees choose a union as a bargaining representative, the employer and union are required to meet at reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the decision's effects on unit employees.


[294] Legislative report: "Worker Paycheck Fairness Act of 1999." U.S. House of Representatives, Committee on Education and the Workforce, October 11, 2000. http://www.gpo.gov/…


Page 9:


Several workers appearing before the Committee expressed frustration at the Hobson's choice they were facing. Leonard Cipressi from Los Angeles, California told the Committee: "When you exercise your Beck rights you don't get to vote on contracts that affect you, your family, your peers. Not only that, you don't get to exercise free speech because you're not allowed to go to union meetings."24


24Hearing on Mandatory Assessment of Union Dues, Before the Subcommittee on Employer-Employee Relations, 104th Cong., 2nd Sess., at 92 (April 18, 1996)(Serial No. 104–66).


[295] Paper: "Unions and Democracy: When Do Nonmembers Have Voting Rights?" Journal of Business & Technology Law, 2014. Pages 213-228. http://digitalcommons.law.umaryland.edu/…


Page 214: "The article explores the somewhat inconsistent judicial treatment of the question of whether agency fee payers are entitled to vote on matters related to the terms and conditions of employment."


Page 220:


It is difficult to draw conclusions on an agency fee payer's right to vote on matters relating to employment from such a slim history of inconsistent decisions. Often, courts have found that if a union retained any negotiating capacity, then it need not permit nonmembers to vote. If a matter relating to the terms and conditions of employment is left solely to a vote, however, some courts have found it to be a violation of a union's duty of fair representation to refuse to allow nonmembers to vote. … While courts have often ruled against agency fee payers' rights to vote on the basis that the decision is not significant enough to justify judicial interference in what are characterized as internal union matters, it is odd that in cases where more significant employment decisions were at issue … courts have declined to "interfere." These odd distinctions and somewhat inconsistent decisions are partly the result of a paucity of cases; there have simply been so few cases it is difficult to identify common judicial themes or approaches. The inconsistencies, however, illustrate a general judicial aversion to challenge the conduct of unions, even when the equivalent discriminatory conduct would be intolerable in other contexts.


Page 227: "Under federal law and that of many states, at least, agency fee employees must either elect to join unions (and subsidize the unions' political and campaign contributions) or be refused an opportunity to vote on employment matters."


[296] Article: "Let's Give the Employees a Voice: Legislation Regulating Union Strike Votes." By George O. Bahrs (of the California Bar). American Bar Association Journal, January 1959. Pages 35-38.


Page 36: "There is no statutory provision whatever for determining which employees are eligible to participate in strike votes. There is not even any legal provisions that the voting will be limited to the employees who are represented in the particular negotiations and who are covered by the contract the union is trying to secure. This applies to some of the biggest unions and the biggest strikes in the country."


NOTE: In October 2014, Just Facts searched the current federal law for provisions controlling which employees are eligible to participate in strike votes. There were none [U.S. Code Title 29, Chapter 7, Subchapter II: "National Labor Relations Act." http://www.law.cornell.edu/uscode/text/29/chapter-7/subchapter-II]. This is also evidenced by the three footnotes below, which show variance in who unions allow to participate and proposed legislation that would allow all affected workers to participate.


[297] Webpage: "Frequently Asked Questions (FAQ)." International Brotherhood of Teamsters. Accessed October 29, 2014 at http://teamster.org/about/frequently-asked-questions-faq


"A majority of workers in the bargaining unit must vote in favor of a strike before one can be called. The decision rests with the affected workers."


[298] "CWA Constitution as Amended April 2013." Communications Workers of America. http://cwafiles.org/for-locals/2013Constitution.pdf


Page 31:


Section 6—Procedure for Local Strike Vote


In taking a strike vote Locals shall act in accordance with the following minimum requirements:


(a) The Locals shall, upon reasonable notice, call a meeting of its members, wherever feasible, and present the issue or issues involved in the proposed strike;

(b) The members present at such meeting shall vote by secret ballot on the question of whether or not a strike shall be called;

(c) Where meetings cannot, feasibly, be called, a secret ballot shall be taken of the members, by mail or otherwise, on the question of whether or not a strike shall be called;

(d) A majority of the members voting shall determine whether or not a strike shall be called;

(e) Copies of notice of the result of strike vote shall be sent to the Vice President or Executive Officer and to the President of the Union.


[299] Senate Bill 1712: "Employee Rights Act." 113th U.S. Congress, November 13, 2014. https://www.congress.gov/…


Mr. Hatch (for himself, Mr. Alexander, Mr. McConnell, Mr. Barrasso, Mr. Boozman, Mr. Burr, Mr. Chambliss, Mr. Coburn, Mr. Cochran, Mr. Cornyn, Mr. Enzi, Mr. Graham, Mr. Heller, Mr. Inhofe, Mr. Isakson, Mr. Johnson of Wisconsin, Mr. Lee, Mr. McCain, Mr. Paul, Mr. Risch, Mr. Rubio, Mr. Scott, Mr. Thune, and Mr. Wicker) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions….


(b) Rights of members.—Section 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411(a)(1)) is amended by adding at the end the following "Every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization, shall have the same right as members to vote by secret ballot regarding whether to ratify a collective bargaining agreement with, or to engage in, a strike or refusal to work of any kind against their employer.".


[300] U.S. Code Title 29, Chapter 7, Subchapter II, Section 162: "Construction of provisions." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/164


(b) Agreements requiring union membership in violation of State law

Nothing in this subchapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.


[301] Public Law 80-101: "Labor Management Relations Act of 1947" (a.k.a "Taft-Hartley Act"). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. http://www.fofweb.com/…


"Sec. 14. (b) Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law."


[302] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


More than 20 states have banned union-security agreements by passing so-called "right to work" laws. In these states, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union. These states include Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.


NOTE: The above list is outdated, as it excludes Michigan and Indiana, which recently passed right-to-work laws.


[303] Webpage: "Right to Work States." National Right to Work Legal Defense Foundation. Accessed October 11, 2014 at http://www.nrtw.org/rtws.htm


Alabama | Arizona | Arkansas | Florida | Georgia | Guam | Idaho | Indiana | Iowa | Kansas | Louisiana | Michigan (Private/Public) | Mississippi | Nebraska | Nevada | North Carolina | North Dakota | Oklahoma |South Carolina | South Dakota | Tennessee | Texas | Utah | Virginia | Wyoming


[304] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


"After employees choose a union as a bargaining representative, the employer and union are required to meet at reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the decision's effects on unit employees."


[305] Brief: "Labor Employment Laws." Arizona State Senate, December 1, 2013. http://www.azleg.gov/…


Page 6:


In right-to-work states, unions cannot ask and employers cannot agree to enter into union-security agreements. Employees cannot be required to either join the union or pay the equivalent dues in order to remain employed. Employees who want to join can do so, with all the privileges of membership, such as participation in contract negotiations, ratification of the contract, voting on the decision to strike and voting for leadership. Nonmembers are generally denied those privileges, but are accorded any contractual benefits. In addition, the union has a duty to represent all employees fairly without regard to their membership status.


[306] Report: "Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions." By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982.


Page 1:


Just as one of the major goals of a union is to provide job security for its members, the union also seeks security for itself as an institution in collective bargaining agreements. To accomplish this, the union normally demands some type of union security and automatic dues checkoff arrangements.


Union security provisions require some or all members of the bargaining unit to become or remain members of the union, or to pay service fees to the union, as a condition of employment. …


The primary benefit of union security and dues checkoff arrangements is the strengthening of the union. Besides being larger than they might otherwise be, union membership and financial resources became relatively permanent and steady. …


For this study, the Bureau examined 1,327 private industry agreements, excluding railroad and airline agreements, each covering 1,000 workers or more, or almost three-fourths of such agreements. The agreements covered 6.1 million workers, or about one-fourth of the total under collective bargaining agreements outside the excluded industries. …


The overall incidence of agreements containing union security provisions increased from 79 percent in 1958-1959 to 83 percent in 1981-82, and worker coverage increased from 82 percent to 90 percent.


[307] Article: "NLRB cannot force companies to bargain in face of clear impasse." Inside Counsel, January 28, 2013. http://www.insidecounsel.com/…


[Per] Stephen Key, a partner at Key Harrington Barnes …


"It is exceptionally rare for a union to agree to a contract that eliminates the union security clause," Key says. "At the end of the day, the union is a business. So any other term in the contract, the union would be willing to compromise on, if it means the difference between keeping their dues and losing their dues."


[308] Ruling 11-1337: Erie Brush v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, November 27, 2012. Decided 3-0. http://www.laborrelationstoday.com/…


Page 3:


Erie manufactures washing and polishing brushes at its facility in Chicago, Illinois. The Seventh Circuit enforced a previous NLRB order requiring Erie to recognize and bargain with the Service Employees International Union, Local 1 ("the Union") for at least one year. … Erie began negotiations with the Union on June 28, 2005. At the parties' first meeting, the Union's chief negotiator, Charles Bridgemon, asked that the parties discuss noneconomic issues before economic ones, and Erie's chief negotiator, Irving M. Geslewitz, agreed. Between June 28, 2005 and March 31, 2006, the parties met on eight occasions and reached agreement on all noneconomic issues except two: union security and arbitration of grievances. The Union insisted on including union security and arbitration clauses in the contract. Erie was equally committed to an open shop and opposed to arbitration. During the meetings, Bridgemon repeatedly told Geslewitz that the Union had no room to compromise on union security or arbitration, calling those issues "make or break on [the] whole contract" and saying that the Union "can't work on these things" and "there wouldn't be a contract without a union security clause." Geslewitz was just as adamant, refusing to agree to a contract that contained union security or arbitration provisions.


Page 5:


After the Union brought unfair labor practice charges, the Board's General Counsel issued a complaint. An NLRB Administrative Law Judge ("ALJ") found that Erie had violated section 8(a)(5) and (1) by refusing to bargain with the Union between May 10 and June 21, 2006. …


Erie filed exceptions to the ALJ's findings. A divided Board affirmed the ALJ's findings and order with only minor modifications. See id. at 1–5 (Board Op.). Member Hayes dissented from the Board's decision, stating that because the parties were at a bona fide impasse on union security and arbitration, he would reverse the ALJ's finding of unlawful refusal to bargain. Id. at 9 (Dissenting Op.).


As a remedy, the Board ordered Erie to cease and desist from refusing to bargain. Id. at 4–5 (Board Op.), 13 (ALJ Op.). The Board ordered Erie to recognize and bargain with the Union as the exclusive bargaining representative of Erie employees for at least six months. Id. Finally, the Board required Erie to physically post and electronically distribute a notice announcing that Erie would no longer engage in violations of the Act. Id.


Erie petitions this court for review, arguing that the Board's finding of unlawful refusal to bargain was not supported by substantial evidence in the record. In addition, Erie challenges the propriety of the Board's affirmative bargaining order.


Page 6:


Section 8(a)(5) of the Act prohibits an employer from "refus[ing] to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). The obligation to "bargain collectively" requires "the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to … the negotiation of an agreement," but it "does not compel either party to agree to a proposal or require the making of a concession." Id. § 158(d). The bargaining obligation is suspended temporarily when the parties reach a lawful impasse. Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). A lawful impasse "occurs when 'good faith negotiations have exhausted the prospects of concluding an agreement.' " TruServ Corp. v. NLRB, 254 F.3d 1105, 1114 (D.C. Cir. 2001) (quoting Taft Broadcasting Co., 163 NLRB 475, 478 (1967)). In other words, impasse exists if the parties "are warranted in assuming that further bargaining would be futile." Id. (quoting Wycoff Steel, Inc., 303 NLRB 517, 523 (1991)) (internal quotation mark omitted).


Page 11:


All record evidence supports the proposition that the parties' diametrically opposed positions on union security "presented … an insurmountable obstacle to an agreement." Richmond Electrical Services, Inc., 348 NLRB 1001, 1003 (2006). Because "the parties' failure to agree on this issue destroyed any opportunity for reaching a … collective-bargaining agreement," CalMat, 331 NLRB at 1098, the impasse on union security led to a breakdown in overall negotiations. Therefore, the record evidence clearly demonstrates that Erie met its burden of showing that the parties were at an impasse on the critical issue of union security on March 31, 2006.


Page 13:


Because Erie and the Union were at a lawful impasse on at least the critical issue of union security from March 31 through the end of the parties' relevant communications, Erie was relieved of the duty to bargain during that time period. See id. at 232 ("[A] good-faith impasse in negotiations temporarily suspends the duty to bargain."). Thus, Erie did not unlawfully refuse to bargain. The Board's decision finding that Erie violated section 8(a)(5) and (1) was not supported by substantial evidence in the record.


Erie argues alternatively that the Board erred in imposing a bargaining order as a remedy and reminds us that we have often told the Board that such an order is an extraordinary remedy that may not be imposed in run-of-the-mill cases. See Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). While this proposition is true enough, we have no occasion to examine the question in the present case, as our decision on the merits issue of impasse moots any issue as to the propriety of remedy. Nor need we discuss the Board's cross-petition for enforcement of the order since our merits decision renders that petition moot.


III. CONCLUSION


For the foregoing reasons, we grant the petition for review, vacate the Board's decision and order, and deny the Board's cross-petition for enforcement.


[309] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


"An employee may object to union membership on religious grounds, but in that case, must pay an amount equal to dues to a nonreligious charitable organization."


[310] U.S. Code Title 29, Chapter 7, Subchapter II, Section 169: "Employees with religious convictions; payment of dues and fees." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/169


Any employee who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required in a contract between such employees' employer and a labor organization in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious, nonlabor organization charitable fund exempt from taxation under section 501 (c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in such contract or if the contract fails to designate such funds, then to any such fund chosen by the employee. If such employee who holds conscientious objections pursuant to this section requests the labor organization to use the grievance-arbitration procedure on the employee's behalf, the labor organization is authorized to charge the employee for the reasonable cost of using such procedure.


[311] Report: "Federal Labor Relations Statutes: An Overview." By Alexandra Hegji. Congressional Research Service, November 26, 2012. http://fas.org/sgp/crs/misc/R42526.pdf


Page 19: "Unions and employers are generally allowed to enter into union security agreements under which employees may be required, as a condition of employment, to become union members by paying dues and initiation fees."


Page 35: "Union security agreements are prohibited under the FSLMRS [Federal Service Labor-Management Relations Statute]. Unions representing federal employees must represent all unit employees, regardless of whether they pay dues"


[312] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter I, Section 7102: "Employees' rights." Accessed October 12, 2014 at http://www.law.cornell.edu/uscode/text/5/7102


"Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right."


[313] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. Ten other states allow bargaining for some state and/or local employees (e.g., public safety, teachers). The remaining nine states lack collective bargaining statutes for their state and local government employees (American Federation of State County & Municipal Employees [AFSCME], 2010). In some instances, however, executive orders or local ordinances confer rights to bargain or have representation.


[314] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[315] Ruling 431 U.S. 209: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. Decided 9-0 (with three separate concurrences from four Justices who wrote that the Court did not go far enough in protecting workers from being forced to subsidized union political activities – see next footnote). http://www.law.cornell.edu/supremecourt/text/431/209


Opinion:


The State of Michigan has enacted legislation authorizing a system for union representation of local governmental employees. A union and a local government employer are specifically permitted to agree to an "agency shop" arrangement, whereby every employee represented by a union even though not a union member must pay to the union, as a condition of employment, a service fee equal in amount to union dues. The issue before us is whether this arrangement violates the constitutional rights of government employees who object to public-sector unions as such or to various union activities financed by the compulsory service fees.


After a secret ballot election, the Detroit Federation of Teachers (Union) was certified in 1967 pursuant to Michigan law as the exclusive representative of teachers employed by the Detroit Board of Education (Board).1 The Union and the Board thereafter concluded a collective-bargaining agreement effective from July 1, 1969, to July 1, 1971. Among the agreement's provisions was an "agency shop" clause, requiring every teacher who had not become a Union member within 60 days of hire (or within 60 days of January 26, 1970, the effective date of the clause) to pay the Union a service charge equal to the regular dues required of Union members. A teacher who failed to meet this obligation was subject to discharge. Nothing in the agreement, however, required any teacher to join the Union, espouse the cause of unionism, or participate in any other way in Union affairs.


On November 7, 1969 more than two months before the agency-shop clause was to become effective Christine Warczak and a number of other named teachers filed a class action in a state court, naming as defendants the Board, the Union, and several Union officials. Their complaint, as amended, alleged that they were unwilling or had refused to pay dues2 and that they opposed collective bargaining in the public sector. The amended complaint further alleged that the Union "carries on various social activities for the benefit of its members which are not available to non-members as a matter of right," and that the Union is engaged


"in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice, and which are not and will not be collective bargaining activities, i.e., the negotiation and administration of contracts with Defendant Board, and that a substantial part of the sums required to be paid under said Agency Shop Clause are used and will continue to be used for the support of such activities and programs, and not solely for the purpose of defraying the cost of Defendant Federation of its activities as bargaining agent for teachers employed by Defendant Board."3


The complaint prayed that the agency-shop clause be declared invalid under state law and also under the United States Constitution as a deprivation of, inter alia, the plaintiffs' freedom of association protected by the First and Fourteenth Amendments, and for such further relief as might be deemed appropriate. …


To compel employees financially to support their collective-bargaining representative has an impact upon their First Amendment interests. An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan. One individual might disagree with a union policy of negotiating limits on the right to strike, believing that to be the road to serfdom for the working class, while another might have economic or political objections to unionism itself. An employee might object to the union's wage policy because it violates guidelines designed to limit inflation, or might object to the union's seeking a clause in the collective-bargaining agreement proscribing racial discrimination. The examples could be multiplied. To be required to help finance the union as a collective-bargaining agent might well be thought, therefore, to interfere in some way with an employee's freedom to associate for the advancement of ideas, or to refrain from doing so, as he sees fit.16 But the judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress. …


Our province is not to judge the wisdom of Michigan's decision to authorize the agency shop in public employment.20 Rather, it is to adjudicate the constitutionality of that decision. The same important government interests recognized in the Hanson and Street cases presumptively support the impingement upon associational freedom created by the agency shop here at issue. Thus, insofar as the service charge is used to finance expenditures by the Union for the purposes of collective bargaining, contract administration, and grievance adjustment, those two decisions of this Court appear to require validation of the agency-shop agreement before us. …


We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative.32 Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.


There will, of course, be difficult problems in drawing lines between collective-bargaining activities, for which contributions may be compelled, and ideological activities unrelated to collective bargaining, for which such compulsion is prohibited.33 The Court held in Street, as a matter of statutory construction, that a similar line must be drawn under the Railway Labor Act, but in the public sector the line may be somewhat hazier. The process of establishing a written collective-bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process. We have no occasion in this case, however, to try to define such a dividing line. The case comes to us after a judgment on the pleadings, and there is no evidentiary record of any kind. The allegations in the complaints are general ones, see supra, at 212-213, and the parties have neither briefed nor argued the question of what specific Union activities in the present context properly fall under the definition of collective bargaining. The lack of factual concreteness and adversary presentation to aid us in approaching the difficult line-drawing questions highlights the importance of avoiding unnecessary decision of constitutional questions.34 All that we decide is that the general allegations in the complaints, if proved, establish a cause of action under the First and Fourteenth Amendments.


[316] Ruling 431 U.S. 209: Abood v. Detroit Board of Education. U.S. Supreme Court, May 23, 1977. http://www.law.cornell.edu/supremecourt/text/431/209


Powell and Blackmun concurrence:


Before today it had been well established that when state law intrudes upon protected speech, the State itself must shoulder the burden of proving that its action is justified by overriding state interests. … The Court, for the first time in a First Amendment case, simply reverses this principle. Under today's decision, a nonunion employee who would vindicate his First Amendment rights apparently must initiate a proceeding to prove that the union has allocated some portion of its budget to "ideological activities unrelated to collective bargaining." Ante, at 237-241. I would adhere to established First Amendment principles and require the State to come forward and demonstrate, as to each union expenditure for which it would exact support from minority employees, that the compelled contribution is necessary to serve overriding governmental objectives. This placement of the burden of litigation, not the Court's, gives appropriate protection to First Amendment rights without sacrificing ends of government that may be deemed important.


Rehnquist concurrence: "I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union."


Stevens concurrence: "More specifically, the Court's opinion does not foreclose the argument that the Union should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining."


[317] Book: The Constitution of The United States of America: Analysis And Interpretation (Centennial Edition). Edited by Kenneth R. Thomas and Larry M. Eig. Library of Congress, Congressional Research Service, 2013. http://www.gpo.gov/…


Pages 1181-1185 (footnotes removed):


Conflict Between Organization and Members. —It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy. But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations. For example, such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.


Union shop agreements generally require, as a condition of employment, membership in the union on or after the thirtieth day following the beginning of employment. In Railway Employes' Dep't v. Hanson, the Supreme Court upheld the constitutionality of such agreements, noting that the record in the case did not indicate that union dues were being "used as a cover for forcing ideological conformity or other action in contravention of the First Amendment," such as by being spent to support political candidates. In International Ass'n of Machinists v. Street, where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.


In Abood v. Detroit Bd. of Education, the Court found Hanson and Street applicable to the public employment context. Recognizing that any system of compelled support restricted employees' right not to associate and not to support, the Court nonetheless found the governmental interests served by an "agency shop" agreement— the promotion of labor peace and stability of employer-employee relations— to be of overriding importance and to justify the impact upon employee freedom. But the Court drew a different balance when it considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union's duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs. The remedy, however, was not to restrain the union from making non-collective-bargaining-related expenditures, but was to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions. Later, the Court further tightened the requirements. A proportionate refund is inadequate because "even then the union obtains an involuntary loan for purposes to which the employee objects"; an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union's fee. Therefore, the union procedure must also "provide for a reasonably prompt decision by an impartial decisionmaker."


In Davenport v. Washington Education Ass'n, the Court noted that, although Chicago Teachers Union v. Hudson had "set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes," it "never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as 'outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirements under Abood.' " Thus, the Court held in Davenport that the State of Washington could prohibit "expenditure of a nonmember's agency fees for election-related purposes unless the nonmember affirmatively consents." The Court added that "Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely."


And then, in Knox v. Service Employees International Union, the Court suggested constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt in system. The union in Knox had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic in the first place, and, then, charged that requiring non-union members to affirmatively opt out of contributing to political activities was "a remarkable boon for unions." Continuing to call opt-out arrangements impingements on the First Amendment rights of non-union members, the majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed nonunion employees to opt in rather than requiring them to opt out. Two concurring Justices, echoed by the dissenters, heavily criticized the majority for reaching "significant constitutional issues not contained in the questions presented, briefed, or argued." Rather, the concurrence more narrowly found that unions may not collect special political assessments from non-union members who earlier objected to non-chargeable (i.e., political) expenses, and could only collect from non-objecting nonmembers after giving notice and an opportunity to opt out.


In Ysursa v. Pocatello Education Ass'n, the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union's First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was "justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics."


The Court has held that a labor relations body may not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.


[318] Ruling 11-681: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5-4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. http://www.law.cornell.edu/supremecourt/text/11-681


Majority:


This brings us to Abood, which, unlike Hanson and Street, involved a public-sector collective-bargaining agreement. The Detroit Federation of Teachers served "as the exclusive representative of teachers employed by the Detroit Board of Education." … The collective-bargaining agreement between the union and the board contained an agency-shop clause requiring every teacher to "pay the Union a service charge equal to the regular dues required of Union members." … A putative class of teachers sued to invalidate this clause. Asserting that "they opposed collective bargaining in the public sector," the plaintiffs argued that " 'a substantial part' " of their dues would be used to fund union " 'activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice.' " …


This Court treated the First Amendment issue as largely settled by Hanson and Street . … The Court acknowledged that Street was resolved as a matter of statutory construction without reaching any constitutional issues … and the Court recognized that forced membership and forced contributions impinge on free speech and associational rights…. But the Court dismissed the objecting teachers' constitutional arguments with this observation: "[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." …


The Abood Court understood Hanson and Street to have upheld union-shop agreements in the private sector based on two primary considerations: the desirability of "labor peace" and the problem of " 'free riders[hip].' " …


The Court thought that agency-shop provisions promote labor peace because the Court saw a close link between such provisions and the "principle of exclusive union representation." … This principle, the Court explained, "prevents inter-union rivalries from creating dissension within the work force and eliminating the advantages to the employee of collectivization." … In addition, the Court noted, the "designation of a single representative avoids the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment." … And the Court pointed out that exclusive representation "frees the employer from the possibility of facing conflicting demands from different unions, and permits the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations." …


Turning to the problem of free ridership, Abood noted that a union must " 'fairly and equitably … represent all employees' " regardless of union membership, and the Court wrote as follows: The "union-shop arrangement has been thought to distribute fairly the cost of these activities among those who benefit, and it counteracts the incentive that employees might otherwise have to become 'free riders' to refuse to contribute to the union while obtaining benefits of union representation." …


The plaintiffs in Abood argued that Hanson and Street should not be given much weight because they did not arise in the public sector, and the Court acknowledged that public-sector bargaining is different from private-sector bargaining in some notable respects. … For example, although public and private employers both desire to keep costs down, the Court recognized that a public employer "lacks an important discipline against agreeing to increases in labor costs that in a market system would require price increases." … The Court also noted that "decisionmaking by a public employer is above all a political process" undertaken by people "ultimately responsible to the electorate." … Thus, whether a public employer accedes to a union's demands, the Court wrote, "will depend upon a blend of political ingredients," thereby giving public employees "more influence in the decisionmaking process that is possessed by employees similarly organized in the private sector." … But despite these acknowledged differences between private- and public-sector bargaining, the Court treated Hanson and Street as essentially controlling. …


The Abood Court's analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then.


The Abood Court seriously erred in treating Hanson and Street as having all but decided the constitutionality of compulsory payments to a public-sector union. As we have explained, Street was not a constitutional decision at all, and Hanson disposed of the critical question in a single, unsupported sentence that its author essentially abandoned a few years later. Surely a First Amendment issue of this importance deserved better treatment.


The Abood Court fundamentally misunderstood the holding in Hanson, which was really quite narrow. As the Court made clear in Street, "all that was held in Hanson was that [the RLA] was constitutional in its bare authorization of union-shop contracts requiring workers to give 'financial support' to unions legally authorized to act as their collective bargaining agents." … . In Abood, on the other hand, the State of Michigan did more than simply authorize the imposition of an agency fee. A state instrumentality, the Detroit Board of Education, actually imposed that fee. This presented a very different question.


Abood failed to appreciate the difference between the core union speech involuntarily subsidized by dissenting public-sector employees and the core union speech involuntarily funded by their counterparts in the private sector. In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector. In the years since Abood, as state and local expenditures on employee wages and benefits have mushroomed, the importance of the difference between bargaining in the public and private sectors has been driven home.7


Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends. In the private sector, the line is easier to see. Collective bargaining concerns the union's dealings with the employer; political advocacy and lobbying are directed at the government. But in the public sector, both collective-bargaining and political advocacy and lobbying are directed at the government.


Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either "chargeable" (in Abood's terms, expenditures for "collective-bargaining, contract administration, and grievance-adjustment purposes" …) or non-chargeable (i.e., expenditures for political or ideological purposes …). In the years since Abood, the Court has struggled repeatedly with this issue. … In Lehnert, the Court held that "chargeable activities must (1) be 'germane' to collective-bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding 'free riders'; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop." … But as noted in Justice Scalia's dissent in that case, "each one of the three 'prongs' of the test involves a substantial judgment call (What is 'germane'? What is 'justified'? What is a 'significant' additional burden)." …


Abood likewise did not foresee the practical problems that would face objecting nonmembers. Employees who suspect that a union has improperly put certain expenses in the "germane" category must bear a heavy burden if they wish to challenge the union's actions. "[T]he onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion" … and litigating such cases is expensive. Because of the open-ended nature of the Lehnert test, classifying particular categories of expenses may not be straightforward. …And although Hudson required that a union's books be audited, auditors do not themselves review the correctness of a union's categorization. …


Finally, a critical pillar of the Abood Court's analysis rests on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop. …


Focusing on the benefits of the union's status as the exclusive bargaining agent for all employees in the unit, respondents argue that the agency-fee provision promotes "labor peace," but their argument largely misses the point. Petitioners do not contend that they have a First Amendment right to form a rival union. Nor do they challenge the authority of the SEIU–HII to serve as the exclusive representative of all the personal assistants in bargaining with the State. All they seek is the right not to be forced to contribute to the union, with which they broadly disagree.


A union's status as exclusive bargaining agent and the right to collect an agency fee from non-members are not inextricably linked. For example, employees in some federal agencies may choose a union to serve as the exclusive bargaining agent for the unit, but no employee is required to join the union or to pay any union fee. Under federal law, in agencies in which unionization is permitted, "[e]ach employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right." …


NOTE: See the two footnotes below for more detail on this ruling.


[319] Ruling 11-681: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5-4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. http://www.law.cornell.edu/supremecourt/text/11-681


Majority:


This case presents the question whether the First Amendment permits a State to compel personal care providers to subsidize speech on matters of public concern by a union that they do not wish to join or support. We hold that it does not, and we therefore reverse the judgment of the Court of Appeals. …


Millions of Americans, due to age, illness, or injury, are unable to live in their own homes without assistance and are unable to afford the expense of in-home care. In order to prevent these individuals from having to enter a nursing home or other facility, the federal Medicaid program funds state-run programs that provide in-home services to individuals whose conditions would otherwise require institutionalization. … A State that adopts such a program receives federal funds to compensate persons who attend to the daily needs of individuals needing in-home care. … Almost every State has established such a program. …


One of those States is Illinois, which has created the Illinois Department of Human Services Home Services Program, known colloquially as the state "Rehabilitation Program." … [T]he Rehabilitation Program allows participants to hire a "personal assistant" who provides homecare services tailored to the individual's needs. Many of these personal assistants are relatives of the person receiving care, and some of them provide care in their own homes. …


Illinois law establishes an employer-employee relationship between the person receiving the care and the person providing it. The law states explicitly that the person receiving home care—the "customer"—"shall be the employer of the [personal assistant]." … A "personal assistant" is defined as "an individual employed by the customer to provide … varied services that have been approved by the customer's physician," … and the law makes clear that Illinois "shall not have control or input in the employment relationship between the customer and the personal assistants."


Other provisions of the law emphasize the customer's employer status. The customer "is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant (or PA)], including, without limitation, locating and hiring the PA, training the PA, directing, evaluating and otherwise supervising the work performed by the personal assistant, imposing … disciplinary action against the PA, and terminating the employment relationship between the customer and the PA." … In general, the customer "has complete discretion in which Personal Assistant he/she wishes to hire." …


While customers exercise predominant control over their employment relationship with personal assistants, the State, subsidized by the federal Medicaid program, pays the personal assistants' salaries. The amount paid varies depending on the services provided, but as a general matter, it "corresponds to the amount the State would expect to pay for the nursing care component of institutionalization if the individual chose institutionalization." …


Other than providing compensation, the State's role is comparatively small. The State sets some basic threshold qualifications for employment. … The State mandates an annual performance review by the customer, helps the customer conduct that review, and mediates disagreements between customers and their personal assistants. … The State suggests certain duties that personal assistants should assume, such as performing "household tasks," "shopping," providing "personal care," performing "incidental health care tasks," and "monitoring to ensure the health and safety of the customer." … In addition, a state employee must "identify the appropriate level of service provider" "based on the customer's approval of the initial Service Plan" … and must sign each customer's Service Plan. …


Section 6 of the Illinois Public Labor Relations Act (PLRA) authorizes state employees to join labor unions and to bargain collectively on the terms and conditions of employment.


The PLRA contains an agency-fee provision, i.e., a provision under which members of a bargaining unit who do not wish to join the union are nevertheless required to pay a fee to the union.


In the 1980's, the Service Employees International Union (SEIU) petitioned the Illinois Labor Relations Board for permission to represent personal assistants employed by customers in the Rehabilitation Program, but the board rebuffed this effort. … The board concluded that "it is clear … that [Illinois] does not exercise the type of control over the petitioned-for employees necessary to be considered, in the collective bargaining context envisioned by the [PLRA], their 'employer' or, at least, their sole employer." …


In March 2003, however, Illinois' newly elected Governor, Rod Blagojevich, circumvented this decision by issuing Executive Order 2003–08. … The order noted the Illinois Labor Relations Board decision but nevertheless called for state recognition of a union as the personal assistants' exclusive representative for the purpose of collective bargaining with the State. …


Several months later, the Illinois Legislature codified that executive order by amending the PLRA. … While acknowledging "the right of the persons receiving services … to hire and fire personal assistants or supervise them," the Act declared personal assistants to be "public employees" of the State of Illinois—but "[s]olely for the purposes of coverage under the Illinois Public Labor Relations Act." … The statute emphasized that personal assistants are not state employees for any other purpose, "including but not limited to, purposes of vicarious liability in tort and purposes of statutory retirement or health insurance benefits." …


… The union and the State subsequently entered into collective-bargaining agreements that require all personal assistants who are not union members to pay a "fair share" of the union dues. … These payments are deducted directly from the personal assistants' Medicaid payments. … The record in this case shows that each year, personal assistants in Illinois pay SEIU–HII more than $3.6 million in fees. …


Three of the petitioners in the case now before us—Theresa Riffey, Susan Watts, and Stephanie Yencer-Price—are personal assistants under the Rehabilitation Program. They all provide in-home services to family members or other individuals suffering from disabilities.3 Susan Watts, for example, serves as personal assistant for her daughter, who requires constant care due to quadriplegic cerebral palsy and other conditions. …


In 2010, these petitioners filed a putative class action on behalf of all Rehabilitation Program personal assistants…. Their complaint, which named the Governor and the union as defendants, sought an injunction against enforcement of the fair-share provision and a declaration that the Illinois PLRA violates the First Amendment insofar as it requires personal assistants to pay a fee to a union that they do not wish to support. …


In upholding the constitutionality of the Illinois law, the Seventh Circuit relied on this Court's decision in Abood supra, which held that state employees who choose not to join a public-sector union may nevertheless be compelled to pay an agency fee to support union work that is related to the collective-bargaining process. …


… [T]he State of Illinois now asks us to sanction what amounts to a very significant expansion of Abood—so that it applies, not just to full-fledged public employees, but also to others who are deemed to be public employees solely for the purpose of unionization and the collection of an agency fee. …


Abood involved full-fledged public employees, but in this case, the status of the personal assistants is much different. The Illinois Legislature has taken pains to specify that personal assistants are public employees for one purpose only: collective bargaining. For all other purposes, Illinois regards the personal assistants as private-sector employees. This approach has important practical consequences. …


For one thing, the State's authority with respect to these two groups is vastly different. In the case of full-fledged public employees, the State establishes all of the duties imposed on each employee, as well as all of the qualifications needed for each position. The State vets applicants and chooses the employees to be hired. The State provides or arranges for whatever training is needed, and it supervises and evaluates the employees' job performance and imposes corrective measures if appropriate. If a state employee's performance is deficient, the State may discharge the employee in accordance with whatever procedures are required by law.


With respect to the personal assistants involved in this case, the picture is entirely changed. The job duties of personal assistants are specified in their individualized Service Plans, which must be approved by the customer and the customer's physician. … Customers have complete discretion to hire any personal assistant who meets the meager basic qualifications that the State prescribes in §686.10. See §676.30(b) (the customer "is responsible for controlling all aspects of the employment relationship between the customer and the [personal assistant], including, without limitation, locating and hiring the [personal assistant]" …


Customers supervise their personal assistants on a daily basis, and no provision of the Illinois statute or implementing regulations gives the State the right to enter the home in which the personal assistant is employed for the purpose of checking on the personal assistant's job performance. … And while state law mandates an annual review of each personal assistant's work, that evaluation is also controlled by the customer. … A state counselor is assigned to assist the customer in performing the review but has no power to override the customer's evaluation. … Nor do the regulations empower the State to discharge a personal assistant for substandard performance. … Discharge, like hiring, is entirely in the hands of the customer. …


Consistent with this scheme, under which personal assistants are almost entirely answerable to the customers and not to the State, Illinois withholds from personal assistants most of the rights and benefits enjoyed by full-fledged state employees. As we have noted already, state law explicitly excludes personal assistants from statutory retirement and health insurance benefits. … It also excludes personal assistants from group life insurance and certain other employee benefits provided under the State Employees Group Insurance Act of 1971. … And the State "does not provide paid vacation, holiday, or sick leave" to personal assistants. …


Personal assistants also appear to be ineligible for a host of benefits under a variety of other state laws….


Just as the State denies personal assistants most of the rights and benefits enjoyed by full-fledged state workers, the State does not assume responsibility for actions taken by personal assistants during the course of their employment. The governing statute explicitly disclaims "vicarious liability in tort." … So if a personal assistant steals from a customer, neglects a customer, or abuses a customer, the State washes its hands. …


… Illinois law specifies that personal assistants "shall be paid at the hourly rate set by law" … and therefore the union cannot be in the position of having to sacrifice higher pay for its members in order to protect the nonmembers whom it is obligated to represent. And as for the adjustment of grievances, the union's authority and responsibilities are narrow, as we have seen. The union has no authority with respect to any grievances that a personal assistant may have with a customer, and the customer has virtually complete control over a personal assistant's work.


The union's limited authority in this area has important practical implications. Suppose, for example that a customer fires a personal assistant because the customer wrongly believes that the assistant stole a fork. Or suppose that a personal assistant is discharged because the assistant shows no interest in the customer's favorite daytime soaps. Can the union file a grievance on behalf of the assistant? The answer is no. …


If respondents' and the dissent's views were adopted, a host of workers who receive payments from a governmental entity for some sort of service would be candidates for inclusion within Abood's reach. Medicare-funded home health employees may be one such group. … The same goes for adult foster care providers in Oregon … and Washington … and certain workers under the federal Child Care and Development Fund programs….


If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line,20 and we therefore confine Abood's reach to full-fledged state employees. 21


For all these reasons, we refuse to extend Abood in the manner that Illinois seeks. If we accepted Illinois' argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support. The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the union.


[320] Ruling 11-681: Harris v. Quinn. U.S. Supreme Court, June 30, 2014. Decided 5-4. Majority: Alito, Roberts, Scalia, Kennedy, Thomas. Dissenting: Kagan, Ginsburg, Breyer, Sotomayor. http://www.law.cornell.edu/supremecourt/text/11-681


Dissent:


Abood v. Detroit Bd. of Ed … answers the question presented in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. That is exactly what Illinois did in entering into collective bargaining agreements with the Service Employees International Union Healthcare (SEIU) which included fair-share provisions. Contrary to the Court's decision, those agreements fall squarely within Abood's holding. Here, Illinois employs, jointly with individuals suffering from disabilities, the in-home care providers whom the SEIU represents. Illinois establishes, following negotiations with the union, the most important terms of their employment, including wages, benefits, and basic qualifications. And Illinois's interests in imposing fair-share fees apply no less to those caregivers than to other state workers. The petitioners' challenge should therefore fail. …


To see how easily Abood resolves this case, consider how Illinois structured the petitioners' employment, and also why it did so. The petitioners work in Illinois's Medicaid-funded Rehabilitation Program, which provides in-home services to persons with disabilities who otherwise would face institutionalization. Under the program, each disabled person (the State calls them "customers") receives care from a personal assistant; the total workforce exceeds 20,000. The State could have asserted comprehensive control over all the caregivers' activities. But because of the personalized nature of the services provided, Illinois instead chose (as other States have as well) to share authority with the customers themselves. The result is that each caregiver has joint employers—the State and the customer—with each controlling significant aspects of the assistant's work. …


… Although the majority notes that caregivers do not receive statutory retirement and health insurance benefits … that is irrelevant: Collective bargaining between the State and SEIU has focused on benefits from the beginning, and has produced state-funded health insurance for personal assistants….


… Workforce shortages and high turnover have long plagued in-home care programs, principally because of low wages and benefits. That labor instability lessens the quality of care, which in turn, forces disabled persons into institutions and (massively) increases costs to the State. … The individual customers are powerless to address those systemic issues; rather, the State—because of its control over workforce-wide terms of employment—is the single employer that can do so. And here Illinois determined (as have nine other States, see Brief for Respondent SEIU 51, n. 14) that negotiations with an exclusive representative offered the best chance to set the Rehabilitation Program on firmer footing. Because of that bargaining, as the majority acknowledges, home-care assistants have nearly doubled their wages in less than 10 years, obtained state-funded health insurance, and benefited from better training and workplace safety measures. … The State, in return, has obtained guarantees against strikes or other work stoppages … and most important, believes it has gotten a more stable workforce providing higher quality care, thereby avoiding the costs associated with institutionalization. …


… For some 40 years, Abood has struck a stable balance—consistent with this Court's general framework for assessing public employees' First Amendment claims—between those employees' rights and government entities' interests in managing their workforces. The majority today misapplies Abood, which properly should control this case. Nothing separates, for purposes of that decision, Illinois's personal assistants from any other public employees. The balance Abood struck thus should have defeated the petitioners' demand to invalidate Illinois's fair-share agreement. I respectfully dissent.


[321] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 74: "Where a union is acting as the exclusive representative of bargaining unit employees, it has to represent all unit employees without discrimination. This includes employees who are not dues-paying members of the union."


Page 80:


Are there any situations in which unions can treat non-members differently than members?


• Yes. A union may limit participation in its meetings to members, NFFE, Local 1827, 49 FLRA 738, 741 (1994), and has the right to choose its own representatives, AFSCME, Local 2910, 23 FLRA 352 (1986). All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees. Its members ratify and approve such agreements in the manner provided by the labor organization's governing requirements. AFGE, Local 2000, AFL-CIO, 14 FLRA 617 (1984).


[322] Book: Human Resource and Contract Management in the Public School: A Legal Perspective. By Bernadette Marczely and David W. Marczely. Scarecrow Press, 2002. Page 30:


Employees who join the union will also have the right to fully participate in the union's decision-making process. They will vote on the adoption or rejection of union initiatives, contract proposals, and on the decision to strike. They will also have the opportunity to monitor and perhaps participate in the in the selection of the union's negotiating team and in the way the union allots its funding. Nonmembers, even those compelled to pay fair share fees, will not have a direct say in the way the union conducts its business.


[323] Webpage: "FAQ." Civil Service Employees Association, Local 100, American Federation of State, County and Municipal Employees, AFL-CIO. Accessed October 13, 2014 at https://cseany.org/faq/


What's the difference between a member and agency fee payer?


In most of CSEA's locals there are agency shop provisions required by law. This means workers who choose not to join the union must pay a fee equal to the amount CSEA members pay in dues. In return, CSEA represents these fee payers and negotiates a contract in their behalf. Agency fee payers don't, however, enjoy all the privileges of membership. They do not, for example, vote for union officers or vote to accept or reject their contract. They are also not eligible to take part in CSEA-sponsored programs and member only benefits.


Strangely enough, a lot of agency shop fee payers simply don't realize they're not full-fledged union members. Many of these people see money being deducted from their paychecks from week to week and assume this means they're paying CSEA dues. They are often surprised to learn they're not really members, and sometimes they're even angry when they discover this at contract ratification time or when other important issues are voted upon by the membership.


[324] Paper: "Unions and Democracy: When Do Nonmembers Have Voting Rights?" Journal of Business & Technology Law, 2014. Pages 213-228. http://digitalcommons.law.umaryland.edu/…


Page 227: "Under federal law and that of many states, at least, agency fee employees must either elect to join unions (and subsidize the unions' political and campaign contributions) or be refused an opportunity to vote on employment matters."


[325] Webpage: "If We Decide to Strike: Q&A for University Members." SEIU Local 503 Sublocal 085: University of Oregon, July 30, 2013. http://local085.seiu503.org/…


Who decides to conduct a strike?

You do. Our Union Bargaining Team will ask for authorization from members to initiate a strike, if necessary to move the university system, and all members will have the right to vote on the decision. If a strike occurs, the bargaining team would also make the decision to call for a vote of the membership to end the strike.


Who can vote?

All members in good standing. Fair share payers must first sign up as members to become eligible to vote.


[326] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(e) Secret ballot; limitation of elections

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.


NOTE: See next footnote for relevant portion of section 158 (a)(3).


[327] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer— …

(3) …nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159 (a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159 (e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement….


[328] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 14:


Petition for decertification election. The Act also contains a provision whereby employees or someone acting on their behalf can file a petition seeking an election to determine if the employees wish to retain the individual or labor organization currently acting as their bargaining representative, whether the representative has been certified or voluntarily recognized by the employer. This is called a decertification election.


Union-security deauthorization. Provision is also made for the Board to determine by secret ballot whether the employees covered by a union-security agreement desire to withdraw the authority of their representative to continue the agreement. This is called a union-security deauthorization election and can be brought about by the filing of a petition signed by 30 percent or more of the employees covered by the agreement.


[329] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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….


(c) Hearings on questions affecting commerce; rules and regulations

(1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial number of employees …

ii) assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in subsection (a) of this section …

the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. …

(3) No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held. …


(e) Secret ballot; limitation of elections

(1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

(2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.


[330] For details and documentation about the NLRB's "contract bar" rules for union decertification, see the section above on decertification elections.


[331] Book: Basic Labor and Employment Law for Paralegals. By Clyde E. Craig. Aspen Publishers, 2009.


Page 86: "[T]he contract bar rules do not apply to a deauthorization petition, and it may be filed at any time."


[332] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 13: "The Act also requires that a petition for a union-security deauthorization election be filed by 30 percent or more of the employees in the unit covered by the agreement for the NLRB to conduct an election for that purpose. The showing of interest must be exclusively by employees who are in the appropriate bargaining unit in which an election is sought."


[333] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(e) Secret ballot; limitation of elections

1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158 (a)(3) of this title, of a petition alleging they desire that such authority be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.


[334] Book: Employment and Labor Law (8th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2014.


Page 411: "Unlike representation elections and decertification elections, which are determined by a majority of the votes actually cast, deauthorization elections require that a majority of the members in the bargaining unit vote in favor of rescinding the union shop clause for it to be rescinded."


[335] Report: "Federal Labor Relations Statutes: An Overview." By Alexandra Hegji. Congressional Research Service, November 26, 2012. http://fas.org/sgp/crs/misc/R42526.pdf


Page 19: "Unions and employers are generally allowed to enter into union security agreements under which employees may be required, as a condition of employment, to become union members by paying dues and initiation fees."


Page 35: "Union security agreements are prohibited under the FSLMRS [Federal Service Labor-Management Relations Statute]. Unions representing federal employees must represent all unit employees, regardless of whether they pay dues"


[336] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


"More than 20 states have banned union-security agreements by passing so-called 'right to work' laws. In these states, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union."


[337] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order. Currently, 31 states and the District of Columbia authorize collective bargaining for public employees. Ten other states allow bargaining for some state and/or local employees (e.g., public safety, teachers). The remaining nine states lack collective bargaining statutes for their state and local government employees (American Federation of State County & Municipal Employees [AFSCME], 2010). In some instances, however, executive orders or local ordinances confer rights to bargain or have representation.


[338] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[339] Webpage: "Public Sector Deauthorization Laws (as of 8/2010)." National Right to Work Legal Defense Foundation. http://www.nrtw.org/en/public-sector-deauthorization-laws-8-2010


[340] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer …

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title. …


(b) Unfair labor practices by labor organization

It shall be an unfair labor practice for a labor organization or its agents …

(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 159 (a) of this title …


(d) Obligation to bargain collectively

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party….


[341] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


(a) Exclusive representatives; employees' adjustment of grievances directly with employer

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 purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment….


[342] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


Sec. 8. It shall be an unfair labor practice for an employer …


(5) To refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9(a).


[343] Public Law 80-101: "Labor Management Relations Act of 1947" (a.k.a "Taft-Hartley Act"). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. http://www.fofweb.com/…


NOTE: The following link from the University of Missouri-Kansas City School of Law provides interwoven texts of the 1935 Wagner Act, the 1947 Taft-Hartley Act, and the 1959 Landrum-Griffin Act. The text of each of these laws is identified with different formatting: http://law2.umkc.edu/faculty/profiles/Berger/LaborLaw/NLRA.pdf


(b) It shall be an unfair labor practice for a labor organization or its agents …


(3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 9(a)….


(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party….


[344] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


How is "good faith" bargaining determined?


There are hundreds, perhaps thousands, of NLRB cases dealing with the issue of the duty to bargain in good faith. In determining whether a party is bargaining in good faith, the Board will look at the totality of the circumstances. The duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement as well as a sincere effort to reach a common ground.


The additional requirement to bargain in "good faith" was incorporated to ensure that a party did not come to the bargaining table and simply go through the motions. There are objective criteria that the NLRB will review to determine if the parties are honoring their obligation to bargain in good faith, such as whether the party is willing to meet at reasonable times and intervals and whether the party is represented by someone who has the authority to make decisions at the table.


Conduct away from the bargaining table may also be relevant. For instance if an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith.


[345] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(d) Obligation to bargain collectively

For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification


[346] Public Law 80-101: "Labor Management Relations Act of 1947" (a.k.a "Taft-Hartley Act"). 74th U.S. Congress. Enacted over the veto of Harry Truman on June 23, 1947. http://www.fofweb.com/…


NOTE: The following link from the University of Missouri-Kansas City School of Law provides interwoven texts of the 1935 Wagner Act, the 1947 Taft-Hartley Act, and the 1959 Landrum-Griffin Act. The text of each of these laws is identified with different formatting: http://law2.umkc.edu/faculty/profiles/Berger/LaborLaw/NLRA.pdf


(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification….


[347] Article: "Labor Law." West's Encyclopedia of American Law, 2005. http://www.encyclopedia.com/topic/labor_law.aspx


It is a fundamental part of federal labor policy that unions and management should resolve their disputes through voluntary collective bargaining and not through the imposition of a solution by the government. If a labor dispute becomes serious enough to significantly affect national health or safety, the president has the statutory authority to obtain an 80-day injunction from the federal courts against any strike or lockout. This procedure has been used over three dozen times since 1947, but rarely since the 1970s.


[348] Report: "Major Collective Bargaining Agreements: Union Security and Dues Checkoff Provisions." By Mary Ann Andrews. U.S. Department of Labor, Bureau of Labor Statistics, May 1982.


Page 1:


Just as one of the major goals of a union is to provide job security for its members, the union also seeks security for itself as an institution in collective bargaining agreements. To accomplish this, the union normally demands some type of union security and automatic dues checkoff arrangements. …


Dues checkoff provisions obligate management to withhold union dues and, in many cases, other financial obligations, such as initiation fees, assessments or fines, from an employee's wages and to transmit these funds to the union. Review of labor agreements for dues checkoff provisions may understate their prevalence since checkoff is a common practice in organized establishments and is not always dependent upon a formal clause. …


The primary benefit of union security and dues checkoff arrangements is the strengthening of the union. Besides being larger than they might otherwise be, union membership and financial resources became relatively permanent and steady.


[349] Ruling 11-1337: Erie Brush v. National Labor Relations Board. United States Court of Appeals, District of Columbia Circuit, November 27, 2012. Decided 3-0. http://www.laborrelationstoday.com/…


Page 3:


Erie manufactures washing and polishing brushes at its facility in Chicago, Illinois. The Seventh Circuit enforced a previous NLRB order requiring Erie to recognize and bargain with the Service Employees International Union, Local 1 ("the Union") for at least one year. … Erie began negotiations with the Union on June 28, 2005. At the parties' first meeting, the Union's chief negotiator, Charles Bridgemon, asked that the parties discuss noneconomic issues before economic ones, and Erie's chief negotiator, Irving M. Geslewitz, agreed. Between June 28, 2005 and March 31, 2006, the parties met on eight occasions and reached agreement on all noneconomic issues except two: union security and arbitration of grievances. The Union insisted on including union security and arbitration clauses in the contract. Erie was equally committed to an open shop and opposed to arbitration. During the meetings, Bridgemon repeatedly told Geslewitz that the Union had no room to compromise on union security or arbitration, calling those issues "make or break on [the] whole contract" and saying that the Union "can't work on these things" and "there wouldn't be a contract without a union security clause." Geslewitz was just as adamant, refusing to agree to a contract that contained union security or arbitration provisions.


Page 5:


After the Union brought unfair labor practice charges, the Board's General Counsel issued a complaint. An NLRB Administrative Law Judge ("ALJ") found that Erie had violated section 8(a)(5) and (1) by refusing to bargain with the Union between May 10 and June 21, 2006. …


Erie filed exceptions to the ALJ's findings. A divided Board affirmed the ALJ's findings and order with only minor modifications. See id. at 1–5 (Board Op.). Member Hayes dissented from the Board's decision, stating that because the parties were at a bona fide impasse on union security and arbitration, he would reverse the ALJ's finding of unlawful refusal to bargain. Id. at 9 (Dissenting Op.).


As a remedy, the Board ordered Erie to cease and desist from refusing to bargain. Id. at 4–5 (Board Op.), 13 (ALJ Op.). The Board ordered Erie to recognize and bargain with the Union as the exclusive bargaining representative of Erie employees for at least six months. Id. Finally, the Board required Erie to physically post and electronically distribute a notice announcing that Erie would no longer engage in violations of the Act. Id.


Erie petitions this court for review, arguing that the Board's finding of unlawful refusal to bargain was not supported by substantial evidence in the record. In addition, Erie challenges the propriety of the Board's affirmative bargaining order.


Page 6:


Section 8(a)(5) of the Act prohibits an employer from "refus[ing] to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). The obligation to "bargain collectively" requires "the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to … the negotiation of an agreement," but it "does not compel either party to agree to a proposal or require the making of a concession." Id. § 158(d). The bargaining obligation is suspended temporarily when the parties reach a lawful impasse. Serramonte Oldsmobile, Inc. v. NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). A lawful impasse "occurs when 'good faith negotiations have exhausted the prospects of concluding an agreement.' " TruServ Corp. v. NLRB, 254 F.3d 1105, 1114 (D.C. Cir. 2001) (quoting Taft Broadcasting Co., 163 NLRB 475, 478 (1967)). In other words, impasse exists if the parties "are warranted in assuming that further bargaining would be futile." Id. (quoting Wycoff Steel, Inc., 303 NLRB 517, 523 (1991)) (internal quotation mark omitted).


Page 11:


All record evidence supports the proposition that the parties' diametrically opposed positions on union security "presented … an insurmountable obstacle to an agreement." Richmond Electrical Services, Inc., 348 NLRB 1001, 1003 (2006). Because "the parties' failure to agree on this issue destroyed any opportunity for reaching a … collective-bargaining agreement," CalMat, 331 NLRB at 1098, the impasse on union security led to a breakdown in overall negotiations. Therefore, the record evidence clearly demonstrates that Erie met its burden of showing that the parties were at an impasse on the critical issue of union security on March 31, 2006.


Page 13:


Because Erie and the Union were at a lawful impasse on at least the critical issue of union security from March 31 through the end of the parties' relevant communications, Erie was relieved of the duty to bargain during that time period. See id. at 232 ("[A] good-faith impasse in negotiations temporarily suspends the duty to bargain."). Thus, Erie did not unlawfully refuse to bargain. The Board's decision finding that Erie violated section 8(a)(5) and (1) was not supported by substantial evidence in the record.


Erie argues alternatively that the Board erred in imposing a bargaining order as a remedy and reminds us that we have often told the Board that such an order is an extraordinary remedy that may not be imposed in run-of-the-mill cases. See Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738 (D.C. Cir. 2000). While this proposition is true enough, we have no occasion to examine the question in the present case, as our decision on the merits issue of impasse moots any issue as to the propriety of remedy. Nor need we discuss the Board's cross-petition for enforcement of the order since our merits decision renders that petition moot.


III. CONCLUSION


For the foregoing reasons, we grant the petition for review, vacate the Board's decision and order, and deny the Board's cross-petition for enforcement.


[350] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


"The parties' obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue."


[351] Decision 359 NLRB 30: WKYC-TV, Inc. and National Association of Broadcast Employees and Technicians. National Labor Relations Board, December 12, 2012. Decided 3-1. Majority: Pearce, Griffin, Block. Dissent: Hayes. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e80f3d


Majority:


We agree with the Acting General Counsel and the Union. We find that requiring employers to honor dues-checkoff arrangements post-contract expiration is consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes in terms and conditions of employment. …


The declared policy of the [National Labor Relations] Act, as stated in Section 1, is to "encourage[e] the practice and procedure of collective bargaining" and to protect the "full freedom" of workers in the selection of bargaining representatives of their own choice. Section 8(a)(5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." Because it is critically important that collective bargaining be meaningful, it has long been established that an employer violates Section 8(a)(5) when it unilaterally changes represented employees' wages, hours, and other terms and conditions of employment without providing their bargaining representative prior notice and a meaningful opportunity to bargain about the changes. NLRB v. Katz, 369 U.S. 736, 742–743 (1962). Under this rule, an employer's obligation to refrain from unilaterally changing these mandatory subjects of bargaining applies both where a union is newly certified and the parties have yet to reach an initial agreement, as in Katz, and where the parties' existing agreement has expired and negotiations have yet to result in a subsequent agreement, as in this case. Litton Financial Printing Division v. NLRB, 501 U.S. 190, 198 (1991). In the latter circumstances, an employer must continue in effect contractually established terms and conditions of employment that are mandatory subjects of bargaining, until the parties either negotiate a new agreement or bargain to a lawful impasse. Id. at 198–199. The Board recently explained the importance of this rule:


[T]he status quo [upon contract expiration] must be viewed as a collective whole. In the give-and-take of bargaining, a union presumably will make concessions in certain terms and conditions to achieve improvements in others[.] Preserving the status quo facilitates bargaining by ensuring that the tradeoffs made by the parties in earlier bargaining remain in place. Just as the employer continues to enjoy prior union concessions after the contract expires, as part of the "status quo," so too the union continues to enjoy its bargained-for improvements, unless … the union has clearly and unmistakably agreed to waive them. Finley Hospital, 359 NLRB No. 9, slip op. at 2–3 (2012) (footnote omitted).


An employer's decision to unilaterally cease honoring a dues-checkoff arrangement established in an expired collective-bargaining agreement plainly contravenes these salutary principles. Under settled Board law, widely accepted by reviewing courts,7 dues checkoff is a matter related to wages, hours, and other terms and conditions of employment within the meaning of the Act and is therefore a mandatory subject of bargaining. See, e.g., Tribune Publishing Co., 351 NLRB 196, 197 (2007), enfd. 564 F.3d 1330 (D.C. Cir. 2009). The status-quo rule, then, should apply to dues checkoff, unless there is some cogent reason for an exception. We see no such reason.


It is certainly true that a select group of contractually established terms and conditions of employment— arbitration provisions, no-strike clauses, and management-rights clauses—do not survive contract expiration, even though they are mandatory subjects of bargaining. In agreeing to each of these arrangements, however, parties have waived rights that they otherwise would enjoy in the interest of concluding an agreement, and such waivers are presumed not to survive the contract. For example, in Hilton-Davis Chemical Co., the Board held that parties have no post-expiration duty to honor a contractual agreement to arbitrate, reasoning that such an agreement "is a voluntary surrender of the right of final decision which Congress has reserved to the[ ] parties" because arbitration is, "at bottom, a consensual surrender of the economic power which the parties are otherwise free to utilize." 185 NLRB 241, 242 (1970). As the Board later explained, "because an agreement to arbitrate is a product of the parties' mutual consent to relinquish economic weapons, such as strikes or lockouts, otherwise available under the Act to resolve disputes … the duty to arbitrate … cannot be compared to the terms and conditions of employment routinely perpetuated by the constraints of Katz." Indiana & Michigan Electric Co., 284 NLRB 53, 58 (1987).8 For similar reasons, a contractual no-strike clause normally does not act as a clear and unmistakable waiver of the union's right to strike after the contract expires. Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d 1111, 1114 (D.C. Cir. 1986) (citations omitted). Accordingly, "in recognition of the statutory right to strike, no-strike clauses are [also] excluded from the unilateral change doctrine." Litton Financial Printing, supra, 501 U.S. at 199. The Board has also held that a management-rights clause normally does not survive contract expiration, because "the essence of [a] management-rights clause is the union's waiver of its right to bargain. Once the clause expires, the waiver expires, and the overriding statutory obligation to bargain controls." Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003).9


The rationale behind these narrowly drawn exceptions to Katz does not apply to dues checkoff. Unlike no-strike, arbitration, and management-rights clauses, a dues-checkoff arrangement does not involve the contractual surrender of any statutory or nonstatutory right.10 Rather, it is simply a matter of administrative convenience to a union and employees whereby an employer agrees that it will establish a system where employees may, if they choose, pay their union dues through automatic payroll deduction.11 Payments via a dues-checkoff checkoff agreements, such as employee savings accounts and charitable contributions, which the Board has recognized also create "administrative convenience" and— notably—survive the contracts that establish them. Quality House of Graphics, 336 NLRB 497, 497 fn. 3 (2001).12


[352] Decision 359 NLRB 30: WKYC-TV, Inc. and National Association of Broadcast Employees and Technicians. National Labor Relations Board, December 12, 2012. Decided 3-1. Majority: Pearce, Griffin, Block. Dissent: Hayes. http://mynlrb.nlrb.gov/link/document.aspx/09031d4580e80f3d


Dissent:


[M]y colleagues know well that an employer's ability to cease dues checkoff upon contract expiration has long been recognized as a legitimate economic weapon in bargaining for a successor agreement. The ability of parties to wield such weapons is an integral part of the system of collective bargaining that the Wagner and Taft-Hartley Acts envisioned for the peaceful resolution of industrial disputes. To strip employers of that opportunity would significantly alter the playing field that labor and management have come to know and rely on. Indeed, even in times of union boycott and other economic actions in opposition to an employer's legitimate bargaining position, the employer will be forced to act as the collection agent for dues to finance this opposition.


[353] Webpage: "Cosponsors: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


"Sponsor: Rep. Miller, George [D-CA-7] … Cosponsors … Democratic [=] 226 … Republican [=] 7"


[354] Bill: "H.R.800 - Employee Free Choice Act of 2007 [Placed on Calendar Senate (03/02/2007)]." 110th Congress (2007-2008). Accessed July 22, 2014 at https://beta.congress.gov/…


SEC. 3. FACILITATING INITIAL COLLECTIVE BARGAINING AGREEMENTS. …


… Whenever collective bargaining is for the purpose of establishing an initial agreement following certification or recognition, the provisions of subsection (d) shall be modified as follows:


(1) Not later than 10 days after receiving a written request for collective bargaining from an individual or labor organization that has been newly organized or certified as a representative as defined in section 9(a), or within such further period as the parties agree upon, the parties shall meet and commence to bargain collectively and shall make every reasonable effort to conclude and sign a collective bargaining agreement.


(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.


(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.''. …


… Any employer who willfully or repeatedly commits any unfair labor practice within the meaning of subsections (a)(1) or (a)(3) of section 8 while employees of the employer are seeking representation by a labor organization or during the period after a labor organization has been recognized as a representative defined in subsection (a) of section 9 until the first collective bargaining contract is entered into between the employer and the representative shall, in addition to any make-whole remedy ordered, be subject to a civil penalty of not to exceed $20,000 for each violation.


[355] U.S. Code Title 29, Chapter 7, Subchapter III, Section 172: "Federal Mediation and Conciliation." Accessed October 24, 2014 at http://www.law.cornell.edu/uscode/text/29/172


There is created an independent agency to be known as the Federal Mediation and Conciliation Service…. The Service shall be under the direction of a Federal Mediation and Conciliation Director … who shall be appointed by the President by and with the advice and consent of the Senate. …


The Director is authorized, subject to the civil service laws, to appoint such clerical and other personnel as may be necessary for the execution of the functions of the Service, and shall fix their compensation in accordance with chapter 51 and subchapter III of chapter 53 of title 5, and may, without regard to the provisions of the civil service laws, appoint such conciliators and mediators as may be necessary to carry out the functions of the Service.


[356] Code of Federal Regulations Title 29, Subtitle B, Chapter XII, Part 1404, Subpart A, Section 1404.3: "Administrative responsibilities." Accessed October 24, 2014 at http://www.law.cornell.edu/cfr/text/29/1404.3


(a) Director. The Director of FMCS has responsibility for all aspects of FMCS arbitration activities and is the final agency authority on all questions concerning the Roster and FMCS arbitration procedures.


(b) Office of Arbitration Services. The Office of Arbitration Services (OAS) maintains a Roster of Arbitrators (the Roster); administers subpart C of this part (Procedures for Arbitration Services); assists, promotes, and cooperates in the establishment of programs for training and developing new arbitrators; and provides names or panels of names of listed arbitrators to parties requesting them.


(c) Arbitrator Review Board. The Arbitrator Review Board shall consist of a chairman and members appointed by the Director who shall serve at the Director's pleasure. The Board shall be composed entirely of full-time officers or employees of the Federal Government and shall establish procedures for carrying out its duties.


[357] Calculated with data from vote 118: "The Employee Free Choice Act." U.S. House of Representatives, March 1, 2007. http://clerk.house.gov/evs/2007/roll118.xml

 

Party  Voted YES  Voted NO
Republican  13  7%  183  93%
Democrat  228  99%  2  1%


NOTE: Results do not include those not voting or those who voted "Present."


[358] Report: "Filibusters and Cloture in the Senate." By Richard S. Beth & Stanley Bach. Congressional Research Service, Updated March 28, 2003. http://www.senate.gov/reference/resources/pdf/RL30360.pdf


Summary (page 2 in pdf):


The filibuster is widely viewed as one of the Senate's most characteristic procedural features. Filibustering includes any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote. The possibility of filibusters exists because Senate rules place few limits on Senators' rights and opportunities in the legislative process. …


Senate Rule XXII, however, known as the "cloture rule," enables Senators to end a filibuster on any debatable matter the Senate is considering. Sixteen Senators initiate this process by presenting a motion to end the debate. The Senate does not vote on this cloture motion until the second day after the motion is made. Then it usually requires the votes of at least three-fifths of all Senators (normally 60 votes) to invoke cloture. Invoking cloture on a proposal to amend the Senate's standing rules requires the support of two-thirds of the Senators present and voting.


Page CRS-10:


Invoking cloture usually requires a three-fifths vote of the entire Senate—"three-fifths of the Senators duly chosen and sworn." If there are no vacancies, therefore, 60 Senators must vote to invoke cloture. In contrast, most other votes require only a simple majority (that is, 51%) of the Senators present and voting, assuming that those Senators constitute a quorum. In the case of a cloture vote, the key is the number of Senators voting for cloture, not the number voting against. Failing to vote on a cloture motion has the same effect as voting against the motion: it deprives the motion of one of the 60 votes needed to agree to it.


There is an important exception to the three-fifths requirement to invoke cloture. Under Rule XXII, an affirmative vote of two-thirds of the Senators present and voting is required to invoke cloture on a measure or motion to amend the Senate rules. This exception has its origin in the recent history of the cloture rule. Before 1975, two-thirds of the Senators present and voting (a quorum being present) was required for cloture on all matters. In early 1975, at the beginning of the 94th Congress, Senators sought to amend the rule to make it somewhat easier to invoke cloture. However, some Senators feared that if this effort succeeded, that would only make it easier to amend the rule again, making cloture still easier to invoke. As a compromise, the Senate agreed to move from a maximum of 67 votes (two-thirds of the Senators present and voting) to a minimum of 60 votes (three-fifths of the Senators duly chosen and sworn) on all matters except future rules changes, including changes in the cloture rule itself.


[359] "Standing Rules of the Senate: Rule XXII: Precedence Of Motions." Accessed June 20, 2008. http://rules.senate.gov/senaterules/rule22.php


2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:


"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.


Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.


After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a three-fifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.


[360] Webpage: "Actions: H.R.800 - Employee Free Choice Act of 2007." 110th Congress (2007-2008). Accessed July 22, 2014 at http://beta.congress.gov/…


"06/26/2007 Senate Cloture on the motion to proceed not invoked in Senate by Yea-Nay Vote. 51 - 48. Record Vote Number: 227."


[361] Calculated with data from vote 227: "Employee Free Choice Act of 2007." U.S. Senate, June 26, 2007. http://www.senate.gov/…

 

Party  Voted YES  Voted NO
Republican  1  2%  48  98%
Democrat  48  100%  0  0%
Independent  2  100%  0  0%


NOTE: Results do not include those not voting or those who voted "Present."


[362] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/67


Pages 26-27, 29:


The Statute requires that both agencies and labor organizations, which have a collective bargaining relationship, bargain in good faith. Section 7103(a)(12) of the Statute defines collective bargaining as


the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.


What does bargaining in good faith mean?


• The duty to bargain in good faith means the parties must:

- Approach negotiations with a sincere resolve to reach an agreement

- Meet at reasonable times and convenient places as frequently as needed

- Avoid unnecessary delays


• To determine whether a party has bargained in good faith, the Authority looks at all of these factors and considers the situation as a whole. …


• Certain conduct, such as unilaterally setting dates for negotiations and unwarranted delays, can be evidence of bad faith bargaining. …


• Section 7116(a)(5). It states that "it shall be an unfair labor practice for an agency to refuse to consult or negotiate in good faith with a labor organization as required by this chapter."


Page 82:


Refusal to Bargain


Section 7116(b)(5) of the Statute states that it is an unfair labor practice for a labor organization: To refuse to consult or negotiate in good faith with an agency as required by this chapter; Unions have the same duty as agencies do to approach and participate in the collective bargaining process in good faith. See Section 6, above, on Duty to Bargain. A union violates section 7116(b)(5) if it fails to do this.


What are some examples of section 7116(b)(5) violations?


• Union insists to impasse on a subject that is "covered by" an agreement….


• Union insists to impasse on using a recording device during contract negotiations….


• Union refuses to sign an agreement which has the terms the parties agreed to in negotiations….


• If it appears that the union negotiator has the authority to bind the union in negotiations, and there is no agreement that says something different, the union cannot insist that higher-level union officials must approve the agreement. The union is required to sign the agreement that has the agreed-upon terms.


[363] "Fiscal Year 2013 Performance and Accountability Report." U.S. Federal Labor Relations Authority, December 16, 2013. http://www.flra.gov/webfm_send/781


Page 6:


The Federal Service Impasses Panel (FSIP or the Panel) resolves impasses between federal agencies and unions representing federal employees arising from negotiations over conditions of employment under the Statute and the Federal Employees Flexible and Compressed Work Schedules Act. The Chairman and six other Members of the Panel are appointed by the President for five-year terms. If bargaining between the parties, followed by mediation assistance, does not result in a voluntary agreement, then either party or the parties jointly may request the FSIP's assistance.


Following a preliminary investigation by its staff, the Panel may determine to assert jurisdiction over the request. If jurisdiction is asserted, then the FSIP has the authority to recommend and/or direct the use of various ADR [alternative dispute resolution] procedures. These include informal conferences, additional mediation, fact-finding, written submissions, and mediation-arbitration by Panel Members, the Panel's staff, or private arbitrators. If the parties still are unable to reach a voluntary settlement, then the FSIP may take whatever action it deems necessary to resolve the dispute, including imposition of contract terms through a final action. The merits of the FSIP's decision may not be appealed to any court.


Page 28: "In carrying out the right to bargain collectively, it is not uncommon for a union representative and a federal agency to simply not agree on certain issues and for the bargaining to reach an impasse."


[364] U.S. Code Title 5, Part III, Subpart F, Chapter 71, Subchapter II, Section 7119: "Negotiation impasses; Federal Service Impasses Panel." Accessed June 6, 2014 at http://www.law.cornell.edu/uscode/text/5/7117


(a) The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and assistance.


(b) If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse—

(1) either party may request the Federal Service Impasses Panel to consider the matter, or

(2) the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel.


(c)

(1) The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.

(2) The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations.

(3) Of the original members of the Panel, 2 members shall be appointed for a term of 1 year, 2 members shall be appointed for a term of 3 years, and the Chairman and the remaining members shall be appointed for a term of 5 years. Thereafter each member shall be appointed for a term of 5 years, except that an individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. Any member of the Panel may be removed by the President. …

(5)

(A) The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either—

(i) recommend to the parties procedures for the resolution of the impasse; or

(ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section.

(B) If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may—

(i) hold hearings;

(ii) administer oaths, take the testimony or deposition of any person under oath, and issue subpoenas as provided in section 7132 of this title; and

(iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.

(C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise.


[365] Report: "Selected Characteristics of Private and Public Sector Workers." By Gerald Mayer. Congressional Research Service, March 21, 2014. http://fas.org/sgp/crs/misc/R41897.pdf


Page 7:


In the federal government, most employees do not bargain over wages. Salaried employees generally receive an annual pay adjustment and a locality pay adjustment, effective each January. Federal employees who are paid by the hour usually receive pay adjustments equal to those received by salaried workers in the same locality.10


Some federal workers can bargain over wages. The Postal Reorganization Act of 1970 (P.L. 91- 375) gave postal workers the right to bargain over wages and benefits (excluding retirement benefits).11 Air traffic controllers can bargain over wages because the Federal Aviation Administration (FAA) is required to recognize a union chosen by a majority of employees, but is allowed to develop its own pay system.12 The Tennessee Valley Authority (TVA) has a longstanding policy that allows employees to bargain over wages.13


10 Although the law has never been implemented as enacted, adjustments to federal white-collar pay are based on the Federal Employees Pay Comparability Act of 1990 (FEPCA). See CRS Report RL34463, Federal White-Collar Pay: FY2009 and FY2010 Salary Adjustments, by Barbara L. Schwemle. Also see CRS Report RL33245, Legislative, Executive, and Judicial Officials: Process for Adjusting Pay and Current Salaries, by Barbara L. Schwemle.

11 U.S. Government Accountability Office (GAO), Comparison of Collectively Bargained and Administratively Set Pay Rates for Federal Employees, GAO/FPCD-82-49, July 2, 1982, p. 10, available at http://archive.gao.gov/d41t14/ 118922.pdf.

12 U.S. Government Accountability Office (GAO), Human Capital: Selected Agencies' Statutory Authorities Could Offer Options in Developing a Framework for Governmentwide Reform, GAO-05-398R, April 21, 2005, pp. 8, 31-32, available at http://www.gao.gov/new.items/d05398r.pdf.

13 The Tennessee Valley Authority (TVA) Act of 1933 does not give TVA employees the right to engage in collective bargaining. However, a policy adopted by the TVA in 1935 allows employees to organize and bargain collectively. U.S. Government Accountability Office (GAO), Labor-Management Relations: Tennessee Valley Authority Situation Needs to Improve, GAO/GGD-91-129, September 1991, p. 13, available at http://archive.gao.gov/d18t9/145065.pdf.


[366] Book: Human Resource Management in Public Service: Paradoxes, Processes, and Problems (Fourth edition). By Evan M. Berman, James S. Bowman, Jonathan P. West, and Montgomery R. Van Wart. SAGE Publications, 2013. Page 444:


The institutional structure and legal rights related to collective bargaining vary by level of government, jurisdiction, and occupational groups. National labor laws that govern collective bargaining and representation rights for federal and private sector employees do not pertain to state and local government employees. State and local public employees' bargaining and representation rights are enumerated wherever authorized by state law and, less frequently, by local ordinance or executive order.


[367] Webpage: "Labor and Employment Laws." Legal Information Institute, Cornell Law School. Accessed July 4, 2014 at http://www.law.cornell.edu/wex/table_labor_and_industrial_safety


"This page links to the employment and labor laws of the states, the provisions governing the compensation, hours, and other conditions of work."


[368] Paper: "Compulsory Arbitration: The Scope of Judicial Review." By Victor Cohen. St. John's Law Review, Spring 1977. Pages 604-631. http://scholarship.law.stjohns.edu/…


Page 606: "[A]s a means of settling contract disputes between governmental bodies and key public employees, a number of states have enacted statutes providing for compulsory interest arbitration."


[369] Paper: "Binding Interest Arbitration in the Public Sector: Is It Constitutional?" William & Mary Law Review, 1977. Pages 787-821. http://scholarship.law.wm.edu/…


Pages 787-788:


Strikes by firemen, policemen, and other public employees in New York State in 1975 increased 100 percent in one year; the number of public employees involved in these work stoppages swelled 1800 percent.1 Similar illegal2 behavior, resulting in disruption of public services, is increasing rapidly throughout the United States.3 In an effort to reverse the trend of work stoppages following deadlocked negotiations,4 at least thirty-four states5 and a number of local governments6 have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator's decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer's money.7


In reality, however, public employee unrest continues.8


1. (1976) GOV'T EMPL. REL. REP. (BNA) No. 670 D-3, citing New York Public Employment Relations Board 1975 Annual Report. In 1974 there were 16 strikes involving 4,100 public employees; in 1975 there were 32 strikes involving 77,745 public employees. Id.


2. Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. ALASKA STAT. § 23.40.200 (1972); HAWAII REV. STAT. § 89-12 (Supp. 1975); MINN. STAT. ANN. § 179.64 (West Cum. Supp. 1976); MONT. REV. CODES ANN. § 41-2209 (Cum. Supp. 1975); ORE. REV. STAT. § 243.726 (1975); PA. STAT. ANN. tit. 43, § 1101.1003 (Purdon Cum. Supp. 1976-1977); VT. STAT. ANN. tit. 21, § 1730 (Cum. Supp. 1976).


3. (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


4. McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).


5. The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: Alabama, Alaska, Connecticut, Delaware, Hawaii, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. 1971 ALA. ACTS ch. 993, § 21(b) (mass transit); ALASKA STAT. § 23.40.200 (1972) (policemen, firemen, jail and correctional institution employees, and hospital employees); CONN. GEN. STAT. ANN. § 7-473 (West 1958 & Cum. Supp. 1976) (local); DEL. CODE tit. 2, § 1613 (1974) (mass transit); HAWAII REV. STAT. § 89-11 (Supp. 1975) (state and local); IND. CODE ANN. § 22-6-4-12 (Burns Cum. Supp. 1976) (state and local); IOWA CODE ANN. § 90.15 (West 1972) (firemen); LA. REV. STAT. ANN. § 23:890 (West Cum. Supp. 1976) (mass transit); ME. REv. STAT. tit. 26, § 965(4) (Cum. Supp. 1976-1977) (local); ME. REV. STAT., tit. 26, § 979-D(4) (1964) (state); ME. REV. STAT. tit. 26, § 1026(4) (Cum. Supp. 1976-1977) (university employees); MASS. GEN. LAWS ANN. ch. 150E, § 9 (West Cum. Supp. 1976-1977) (state and local); MICH. CoMP. LAWS ANN. §§ 423.231-.240 (Cum. Supp. 1976-1977) (police and firemen); MINN. STAT. ANN. § 179.38 (West Cum. Supp. 1976) (hospital employees); MINN. STAT. ANN. § 179.72 (West Cum. Supp. 1976) (essential employees); MONT. REv. CODES ANN. § 59-1614(9) (Cum. Supp. 1975) (state and local); NEB. REV. STAT. § 48-810 to 819 (Supp. 1974) (state and local); NEV. REv. STAT. § 288.200 (1973) (local); N.H. REv. STAT. ANN. § 273-A:12 (Supp. 1975) (state and local); N.J. STAT. ANN. § 34:13A-7 (West 1965) (state and local); N.J. STAT. ANN. § 40:37A-96 (West Cum. Supp. 1976-1977) (mass transit); N.M. STAT. ANN. § 14-53-15 (1976) (mass transit); N.Y. CIv. SERV. LAW § 205.3 (McKinney Cum. Supp. 1975-1976) (police and firemen); OHIO REv. CODE ANN. § 306.12 (Page Supp. 1975) (mass transit); OKLA. STAT. ANN. tit. 11, § 548.1 (West Supp. 1976-1977) (police and firemen); ORE. REv. STAT. § 243.712(2)(c) (1975) (state and local); ORE. REv. STAT. § 243.742 (1975) (police, firemen, guards at mental and correctional institutions); PA. STAT. ANN. tit. 43, §§ 1101.804-.805 (Purdon Cum. Supp. 1976-1977) (state and local); PA. STAT. ANN. tit. 43, § 217.4 (Purdon Cum. Supp. 1976-1977) (police and firemen); PA. STAT. ANN. tit. 53, § 39951 (Purdon Cum. Supp. 1976-1977) (mass transit); PA. STAT. ANN. tit. 55, § 563.2 (Purdon 1964) (port authority); R.I. GEN. LAWS § 28-9.1-7 (1968) (firemen); R.I. GEN. LAws § 28-9.2-7 (1968) (police); R.I. GEN. LAWS § 28-9.3-9 (1968) (teachers); R.I. GEN. LAWS § 28-9.4-10 (1968) (municipal employees); R.I. GEN. LAWS § 28-9.5-9 (Supp. 1976), reprinted in [1976 Reference File - 124] GOV'T EMPL. REL. REP. (BNA) 51:4817 (school administrators); R.I. GEN. LAWS § 36-11-9 (Supp. 1975) (state); R.I. GEN. LAWS § 39-18-17 (1969) (mass transit); S.D. COMPILED LAWS ANN. § 9-14A (Cum. Supp. 1975) (police and firemen); TENN. CODE ANN. § 6-3802 (Supp. 1976) (mass transit); TEx. REV. CIv. STAT. ANN. art. 5154c-9 to -15 (Vernon Cum. Supp. 1976-1977) (police and firemen); UTAH CODE ANN. § 34-20a-7 (Supp. 1975) (firemen); VT. STAT. ANN. tit. 3, § 925 (Cum. Supp. 1976) (state); VT. STAT. ANN. tit. 21, § 1733 (Cum. Supp. 1976) (local); VA. CODE ANN. § 15.1-1357.2 (Cum. Supp. 1976) (mass transit); WASH. REV. CODE ANN. § 41.56.450 (Supp. 1975) (police and firemen); WASH. REV. CODE ANN. § 53.18.030 (Supp. 1975) (port authority); W. VA. CODE § 8-27-21 (1976) (mass transit); Wis. STAT. ANN. § 111.70 (West 1974) (Milwaukee police); Wis. STAT. ANN. § 111.77 (West 1974) (police and firemen); Wyo. STAT. § 27-269 (1967) (firemen).


6. See, e.g., SAN FRANCISCO, CAL., ADMIN. CODE, art. XI.A, § 16.216 (1974), reprinted in [1974 Reference File - 811 Gov'T EMPL. REL. REP. (BNA) 51:1437 (local); NEW YORK CITY, N.Y., ADMIN. CODE ch. 54, § 1173-8.0 (1972), reprinted in [1972 Reference File - 40] GOV'T EMPL. REL. REP. (BNA) 51:4167 (local).


7. See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).


8. See (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


Page 792: "The majority of binding interest arbitration statutes give the arbitrators absolute authority to determine the terms of an award."


[370] Article: "Teachers push for binding arbitration." By Jennifer D. Jordan. Providence Journal, May 9, 2012. http://digital.olivesoftware.com/…


The fight to secure binding arbitration for Rhode Island teachers is being revived at the State House after last year's failed attempt by labor leaders in the last days of the legislative session. …


House Bill 7617 would expand the scope of binding arbitration for teachers to include wages and other financial matters and would include non-teacher educational employees such as janitors and support staff. It would also permit either side — labor or management — to declare the move to binding arbitration.


[371] Article: "Menino rages as arbitrator grants major raise to police." By Andrew Ryan. Boston Globe, September 28, 2013. http://www.bostonglobe.com/…


"An arbitration panel ruled Friday evening that Boston police patrolmen deserve a 25.4 percent raise over six years, an amount more than double the increase of other city unions, according to Mayor Thomas M. Menino's administration."


[372] Article: "High Court Throws Out Binding Arbitration Law." By Maura Dolan. Los Angeles Times, April 22, 2003. http://articles.latimes.com/2003/apr/22/local/me-labor22


California cannot require city and county governments to submit to binding arbitration during labor disputes with law enforcement officers and firefighters, the California Supreme Court ruled Monday.


The unanimous ruling -- a victory for local government officials -- struck down a 3-year-old law, which was sponsored by Senate President Pro Tem John Burton and signed by Gov. Gray Davis. The justices ruled that the law, which had been sought by labor unions for decades, violated the state Constitution. …


In an opinion written by Justice Ming W. Chin, the court held that the law permitting binding arbitration violated a state constitutional provision that forbids the Legislature from delegating municipal functions to a private party.


[373] Article: "Voters end binding arbitration for Palo Alto police, firefighters." By Jessica Parks, Ray Braun and Marcella De Laurentiis. Peninsula Press, November 8, 2011. http://peninsulapress.com/…


Palo Alto voters on Tuesday passed Measure D by 67.3 percent, ending binding arbitration for police and firefighters. The measure's passage repealed an article of the City Charter that mandates binding arbitration when contract negotiations between the city and public safety unions come to an impasse. …


Under the current contract, police and fire employees hired before June 2010 can retire at 50 with up to 90 percent of their final year's salary. That means a fire department employee with 30 years of service who retires at age 50, at the department's 2009 average salary of $103,877, would receive a yearly pension of about $93,500. If that retiree lived to age 80, his or her lifetime pension would total $2.8 million.


[374] Article: "Union Organizing in a Government Setting." By Madeline J. Meacham and Patrick R. Scully. The Colorado Lawyer (a publication of the Colorado Bar Association), October 2009. Pages 65-70. http://shermanhoward.com/…


Page 66:


In Greeley Police Union v. City Council of Greeley,37 the Colorado Supreme Court considered the constitutionality of an amendment to the city of Greeley's Charter that gave police collective bargaining rights and imposed binding interest arbitration if negotiations between the city and the union stalled. Under the amendment, the American Arbitration Association (AAA) would provide the parties a list of five AAA arbitrators, from which each side could strike two names.38 AAA would assemble a three-member arbitration panel from the remaining names.39 The Court severed and struck the binding interest arbitration provision, which violated article XXI, § 4, by delegating governmental decision making on issues such as salaries, budgets, and the terms and conditions of employment to arbitrators who were not accountable to the People.40 The Court, nevertheless, upheld the right of police to collectively bargain under the amendment.41


[375] Paper: "Binding Interest Arbitration in the Public Sector: Is It Constitutional?" William & Mary Law Review, 1977. Pages 787-821. http://scholarship.law.wm.edu/…


Pages 788-789:


[P]ublic employers and the electorate increasingly are alarmed at the broad powers delegated to arbitrators who are accountable to no one, and who, by awarding large salary and benefit hikes, indirectly can force substantial budgetary reallocations and tax increases.9 As a result, some local governments, claiming either an inability to pay10 or the unconstitutionality of binding interest arbitration laws,11 have refused to participate in arbitration proceedings12 or to honor arbitration decisions.13


9. See, e.g., Dearborn Fire Fighters Local 412 v. City of Dearborn, 394 Mich. 229, -, 231 N.W.2d 226, 248 (1975) (separate opinion).


10. See, e.g., City of Buffalo v. Patrolman's Benevolent Ass'n (pending before N.Y. Sup. Ct.), summarized in (1976) GOV'T EMPL. REL. REP. (BNA) No. 674 B-10; Caso v. Coffey, Case 1400 E (N.Y. Sup. Ct., App. Div., decided July 12, 1976), summarized in [19761 GOV'T EMPL. REL. REP. (BNA) No. 667, B-5; Harney v. Russo, 435 Pa. 183, -, 225 A.2d 560, 564-65 (1969); City of Spokane v. Spokane Police Guild, - Wash. 2d - . 553 P.2d 1316, 1318 (1976).


11. See, e.g., Town of Arlington v. Board of Conciliation & Arbitration, __ Mass. -, -, 352 N.E.2d 914, 916 (1976); Dearborn Fire Fighters Local 412 v. City of Dearborn, 394 Mich. 229, -, 231 N.W.2d 226, 228 (1975); City of Amsterdam v. Helsby, 37 N.Y.2d 19, 26, 332 N.E.2d 290, 292, 371 N.Y.S.2d 404, 406 (1975); Harney v. Russo, 435 Pa. 183, -, 255 A.2d 560, 561 (1969); City of Spokane v. Spokane Police Guild,__ Wash. 2d -, -, 553 P.2d 1316, 1318 (1976).


12. See, e.g., City of Spokane v. Spokane Police Guild, - Wash. 2d . . 553 P.2d 1316, 1318 (1976).


13. See, e.g., City of Biddeford v. Biddeford Teachers Ass'n, 304 A.2d 387, 389 (Me. 1973); Harney v. Russo, 435 Pa. 183, -, 255 A.2d 560, 561 (1969).


[376] Article: "Labor Law." West's Encyclopedia of American Law, 2005. http://www.encyclopedia.com/topic/labor_law.aspx


"When an employer and a union are unable to resolve their differences and negotiate an employment contract, the parties may use different types of pressure to produce an agreement. These types of pressure include boycotts, strikes, the carrying of signs and banners, picketing, and lockouts."


[377] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: "Representatives and elections." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/157


"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…."


[378] U.S. Code Title 29, Chapter 7, Subchapter II, Section 163: "Right to strike preserved." Accessed October 28, 2014 at http://www.law.cornell.edu/uscode/text/29/163


"Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right."


[379] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…

 

"Sec. 13. Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike."

[380] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 10:


The Right to Strike. Section 7 of the Act states in part, "Employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:


Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.


It is clear from a reading of these two provisions that: the law not only guarantees the right of employees to strike, but also places limitations and qualifications on the exercise of that right. See for example, restrictions on strikes in health care institutions, page 32.


[381] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(g) Notification of intention to strike or picket at any health care institution

A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agreement following certification or recognition the notice required by this subsection shall not be given until the expiration of the period specified in clause (B) of the last sentence of subsection (d) of this section. The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties.


[382] Article: "Let's Give the Employees a Voice: Legislation Regulating Union Strike Votes." By George O. Bahrs (of the California Bar). American Bar Association Journal, January 1959. Pages 35-38.


Page 36: "There is no statutory provision whatever for determining which employees are eligible to participate in strike votes. There is not even any legal provisions that the voting will be limited to the employees who are represented in the particular negotiations and who are covered by the contract the union is trying to secure. This applies to some of the biggest unions and the biggest strikes in the country."


NOTE: In October 2014, Just Facts searched the current federal law for provisions controlling which employees are eligible to participate in strike votes. There were none [U.S. Code Title 29, Chapter 7, Subchapter II: "National Labor Relations Act." http://www.law.cornell.edu/…]. This is also evidenced by the three footnotes below, which show variance in who unions allow to participate and proposed legislation that would allow all affected workers to participate.


[383] Webpage: "Frequently Asked Questions (FAQ)." International Brotherhood of Teamsters. Accessed October 29, 2014 at http://teamster.org/about/frequently-asked-questions-faq


"A majority of workers in the bargaining unit must vote in favor of a strike before one can be called. The decision rests with the affected workers."


[384] "CWA Constitution as Amended April 2013." Communications Workers of America. http://cwafiles.org/for-locals/2013Constitution.pdf


Page 31:


Section 6—Procedure for Local Strike Vote


In taking a strike vote Locals shall act in accordance with the following minimum requirements:


(a) The Locals shall, upon reasonable notice, call a meeting of its members, wherever feasible, and present the issue or issues involved in the proposed strike;

(b) The members present at such meeting shall vote by secret ballot on the question of whether or not a strike shall be called;

(c) Where meetings cannot, feasibly, be called, a secret ballot shall be taken of the members, by mail or otherwise, on the question of whether or not a strike shall be called;

(d) A majority of the members voting shall determine whether or not a strike shall be called;

(e) Copies of notice of the result of strike vote shall be sent to the Vice President or Executive Officer and to the President of the Union.


[385] Senate Bill 1712: "Employee Rights Act." 113th U.S. Congress, November 13, 2014. https://www.congress.gov/…


Mr. Hatch (for himself, Mr. Alexander, Mr. McConnell, Mr. Barrasso, Mr. Boozman, Mr. Burr, Mr. Chambliss, Mr. Coburn, Mr. Cochran, Mr. Cornyn, Mr. Enzi, Mr. Graham, Mr. Heller, Mr. Inhofe, Mr. Isakson, Mr. Johnson of Wisconsin, Mr. Lee, Mr. McCain, Mr. Paul, Mr. Risch, Mr. Rubio, Mr. Scott, Mr. Thune, and Mr. Wicker) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions….


(b) Rights of members.—Section 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411(a)(1)) is amended by adding at the end the following "Every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization, shall have the same right as members to vote by secret ballot regarding whether to ratify a collective bargaining agreement with, or to engage in, a strike or refusal to work of any kind against their employer.".


[386] Web page: "Cosponsors: S.1712 - Employee Rights Act." 113th U.S. Congress Accessed October 29, 2014 at https://www.congress.gov/…


[387] Web page: "All Congressional Actions: S.1712 - Employee Rights Act." 113th U.S. Congress. Accessed October 29, 2014 at https://www.congress.gov/…


11/14/2013

Read twice and referred to the Committee on Health, Education, Labor, and Pensions.

Type of Action: Introduction and Referral

Action By: Senate


11/14/2013

Introduced in Senate

Type of Action: Introduction and Referral

Action By: Senate


[388] Book: Employment and Labor Law (8th edition). By Patrick J. Cihon and James Ottavio Castagnera. South-Western, Cengage Learning, 2014.


Page 571:


Section 8(b)(1)(A) [of the National Labor Relations Act] prohibits union actions that restrain, coerce, or interfere with employee rights under Section7. Section 8(b)(1)(A), however, does provide that "This paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention or membership therein."


In NLRB v. Allis Chalmers Mfg. Co.,31 the Supreme Court held that a union could impose fines against embers who crossed a picket line and worked during an authorized strike. In NLRB v. Boeing,32 the Supreme Court held that a union may file suit in a state court to enforce fines imposed against members. However, if union members legally resign from the union before crossing the picket line and return to work during a strike, the union cannot impose fines against them, as held by the Supreme Court in NLRB v. Textile Workers Granite State Joint Board.33


In response to the Textile Workers Granite State Joint Board decision, a number of unions adopted rules that limited the right of members to resign from the union during a strike. Such rules violate section 8(b)(1)(A) according to the Supreme Court decision in Pattern Makers' League of North America v. NLRB.35


[389] Ruling 473 U.S. 95: Pattern Makers' League of North America v. National Labor Relations Board. U.S. Supreme Court, June 27, 1985. Decided 6-3. Majority: Powell, Burger, White, Rehnquist, O'Connor. Concurring: Blackmun. Dissenting: Brennan, Marshall, Stevens. http://caselaw.lp.findlaw.com/…


Majority:


The League is a national union composed of local associations (locals). In May 1976, its constitution was amended to provide that


"[n]o resignation or withdrawal from an Association, or from the League, shall be accepted during a strike or lockout, or at a time when a strike or lockout appears imminent."


This amendment, known as League Law 13, became effective in October 1976, after being ratified by the League's locals. …


We believe that [Section] 8(b)(1)(A) [of the National Labor Relations Act] properly may be construed as prohibiting the fining of employees who have tendered resignations ineffective under a restriction in the union constitution. …


Section 7 of the Act, 29 U.S.C. 157, grants employees the right to "refrain from any or all [concerted] . . . activities . . . ."7 This general right is implemented by 8(b)(1)(A). The latter section provides that a union commits an unfair labor practice if it "restrain[s] or coerce[s] employees in the exercise" of their [Section] 7 rights.8 When employee members of a union refuse to support a strike (whether or not a rule prohibits returning to work during a strike), they are refraining from "concerted activity." Therefore, imposing fines on these employees for returning to work "restrain[s]" the exercise of their [Section] 7 rights. Indeed, if the terms "refrain" and "restrain or coerce" are interpreted literally, fining employees to enforce compliance with any union rule or policy would violate the Act.


Despite this language from the Act, the Court in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), held that 8(b)(1)(A) does not prohibit labor organizations from fining current members. In NLRB v. Textile Workers, supra, and Machinists v. NLRB, 412 U.S. 84 (1973) (per curiam), the Court found as a corollary that unions may not fine former members who have resigned lawfully. Neither Textile Workers, supra, nor Machinists, supra, however, involved a provision like League Law 13, restricting the members' right to resign. We decide today whether a union is precluded from fining employees who have attempted to resign when resignations are prohibited by the union's constitution.9


The Court's reasoning in Allis-Chalmers, supra, supports the Board's conclusion that petitioners in this case violated 8(b)(1)(A). In Allis-Chalmers, the Court held that imposing court-enforceable fines against current union members does not "restrain or coerce" the workers in the exercise of their 7 rights.10 In so concluding, the Court relied on the legislative history of the Taft-Hartley Act. It noted that the sponsor of 8(b)(1)(A) never intended for that provision " 'to interfere with the internal affairs or organization of unions,' " 388 U.S., at 187 , quoting 93 Cong. Rec. 4272 (1947) (statement of Sen. Ball), and that other proponents of the measure likewise disclaimed an intent to interfere with unions' "internal affairs." 388 U.S., at 187-190. From the legislative history, the Court reasoned that Congress did not intend to prohibit unions from fining present members, as this was an internal matter. The Court has emphasized that the crux of Allis-Chalmers' holding was the distinction between "internal and external enforcement of union rules . . . ." Scofield v. NLRB, 394 U.S., at 428 . See also NLRB v. Boeing Co., 412 U.S. 67, 73 (1973).


The congressional purpose to preserve unions' control over their own "internal affairs" does not suggest an intent to authorize restrictions on the right to resign. Traditionally, union members were free to resign and escape union discipline.11 In 1947, union constitutional provisions restricting the right to resign were uncommon, if not unknown.12 Therefore, allowing unions to "extend an employee's membership obligation through restrictions on resignation" would "expan[d] the definition of internal action" beyond the contours envisioned by the Taft-Hartley Congress. International Assn. of Machinists, Local 1414 (Neufeld Porsche-Audi, Inc.), 270 NLRB No. 209, p. 11 (1984).13


Language and reasoning from other opinions of this Court confirm that the Board's construction of 8(b)(1)(A) is reasonable. In Scofield v. NLRB, supra, the Court upheld a union rule setting a ceiling on the daily wages that members working on an incentive basis could earn. The union members' freedom to resign was critical to the Court's decision that the union rule did not "restrain or coerce" the employees within the meaning of 8(b)(1)(A). It stated that the rule was "reasonably enforced against union members who [were] free to leave the union and escape the rule." Id., at 430. The Court deemed it important that if members were unable to take full advantage of their contractual right to earn additional pay, it was because they had "chosen to become and remain union members." Id., at 435 (emphasis added).


The decision in NLRB v. Textile Workers, 409 U.S. 213 (1972), also supports the Board's view that 8(b)(1)(A) prohibits unions from punishing members not free to resign. There, 31 employees resigned their union membership and resumed working during a strike. We held that fining these former members "restrained or coerced" them, within the meaning of 8(b)(1)(A). In reaching this conclusion, we said that "the vitality of [Section] 7 requires that the member be free to refrain in November from the actions he endorsed in May." Id., at 217-218. Restrictions on the right to resign curtail the freedom that the Textile Workers Court deemed so important. See also Machinists v. NLRB, 412 U.S. 84 (1973).


Section 8(b)(1)(A) allows unions to enforce only those rules that "impai[r] no policy Congress has imbedded in the labor laws . . . ." Scofield, supra, at 430. The Board has found union restrictions on the right to resign to be inconsistent with the policy of voluntary unionism implicit in 8(a)(3).14 See International Assn. of Machinists, Inc., Local 1414 (Neufeld Porsche-Audi, Inc.), supra; Machinists Local 1327 (Dalmo Victor II), 263 N. L. R. B., at 992 (Chairman Van de Water and Member Hunter, concurring). We believe that the inconsistency between union restrictions on the right to resign and the policy of voluntary unionism supports the Board's conclusion that League Law 13 is invalid.


Closed shop agreements, legalized by the Wagner Act in 1935,15 became quite common in the early 1940's. Under these agreements, employers could hire and retain in their employ only union members in good standing. R. Gorman, Labor Law, ch. 28, 1, p. 639 (1976). Full union membership was thus compulsory in a closed shop; in order to keep their jobs, employees were required to attend union meetings, support union leaders, and otherwise adhere to union rules. Because of mounting objections to the closed shop, in 1947 - after hearings and full consideration - Congress enacted the Taft-Hartley Act. Section 8(a)(3) of that Act effectively eliminated compulsory union membership by outlawing the closed shop. The union security agreements permitted by 8(a)(3) require employees to pay dues, but an employee cannot be discharged for failing to abide by union rules or policies with which he disagrees.16


Full union membership thus no longer can be a requirement of employment. If a new employee refuses formally to join a union and subject himself to its discipline, he cannot be fired. Moreover, no employee can be discharged if he initially joins a union, and subsequently resigns. We think it noteworthy that 8(a)(3) protects the employment rights of the dissatisfied member, as well as those of the worker who never assumed full union membership. By allowing employees to resign from a union at any time, 8(a)(3) protects the employee whose views come to diverge from those of his union.


League Law 13 curtails this freedom to resign from full union membership. Nevertheless, petitioners contend that League Law 13 does not contravene the policy of voluntary unionism imbedded in the Act. They assert that this provision does not interfere with workers' employment rights because offending members are not discharged, but only fined. We find this argument unpersuasive, for a union has not left a "worker's employment rights inviolate when it exacts [his entire] paycheck in satisfaction of a fine imposed for working." Wellington, Union Fines and Workers' Rights, 85 Yale L. J. 1022, 1023 (1976). Congress in 1947 sought to eliminate completely any requirement that the employee maintain full union membership.17 Therefore, the Board was justified in concluding that by restricting the right of employees to resign, League Law 13 impairs the policy of voluntary unionism.


[390] Decision 306 U.S. 240: Labor Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6-2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. https://supreme.justia.com/cases/federal/us/306/240/case.html


Majority:


Respondent, Fansteel Metallurgical Corporation, is engaged at North Chicago, Illinois, in the manufacture and sale of products made from rare metals. …


Shortly after the second meeting in the afternoon of February 17th, the Union committee decided upon a "sit-down strike" by taking over and holding two of respondent's "key" buildings. These were thereupon occupied by about 95 employees. Work stopped, and the remainder of the plant also ceased operations. Employees who did not desire to participate were permitted to leave, and a number of Union members who were on the night shift and did not arrive for work until after the seizure did not join their fellow members inside the buildings. At about six o'clock in the evening, the superintendent, accompanied by police officials and respondent's counsel, went to each of the buildings and demanded that the men leave. They refused, and respondent's counsel "thereupon announced in loud tones that all the men in the plant were discharged for the seizure and retention of the buildings." The men continued to occupy the buildings until February 26, 1937. Their fellow members brought them food, blankets, stoves, cigarettes, and other supplies. …


.. The [National Labor Relations] Board concluded that, by "the anti-union statements and actions" of the superintendent on September 10, 1936, and September 21, 1936, by "the campaign to introduce into the plant a company union," by "the isolation of the union president from contact with his fellow employees," and by the employment and use of a "labor spy," respondent had interfered with its employees, and restrained and coerced them, in the exercise of their right to self-organization guaranteed in § 7 of the [National Labor Relations] Act, and thus had engaged in an unfair labor practice under § 8(1) of the Act.


Owing to the fact that, in September, 1936, the Union did not have a majority of the employees in the appropriate unit, the Board held that it was precluded from finding unfair labor practices in refusing to bargain collectively at that time, but the Board found that there was such a refusal on February 17, 1937, when the Union did have a majority of the employees in the appropriate unit, and that this constituted a violation of § 8(5).


These conclusions are supported by the findings of the Board, and the latter, in this relation, have substantial support in the evidence. …


For the unfair labor practices of respondent, the Act provided a remedy. Interference in the summer and fall of 1936 with the right of self-organization could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1937. But, reprehensible as was that conduct of the respondent, there is no ground for saying that it made respondent an outlaw, or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike, but they had no license to commit acts of violence or to seize their employer's plant. We may put on one side the contested questions as to the circumstances and extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But, in its legal aspect, the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property, or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force, instead of legal remedies, and to subvert the principles of law and order which lie at the foundations of society.


As respondent's unfair labor practices afforded no excuse for the seizure and holding of its buildings, respondent had its normal rights of redress. Those rights, in their most obvious scope, included the right to discharge the wrongdoers from its employ. To say that respondent could resort to the state court to recover damages or to procure punishment, but was powerless to discharge those responsible for the unlawful seizure, would be to create an anomalous distinction for which there is no warrant unless it can be found in the terms of the National Labor Relations Act. We turn to the provisions which the Board invokes.


(2) In construing the Act in Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 45-46, we said that it "does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them;" that the employer


"may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion." …


It is apparent under that construction of the Act that, had there been no strike, and employees had been guilty of unlawful conduct in seizing or committing depredations upon the property of their employer, that conduct would have been good reason for discharge, as discharge on that ground would not be for the purpose of intimidating or coercing employees with respect to their right of self-organization or representation, or because of any lawful union activity, but would rest upon an independent and adequate basis.


But the Board, in exercising its authority under §10(c) to reinstate "employees," insists that, here, the status of the employees was continued, despite discharge for unlawful conduct, by virtue of the definition of the term "employee" in § 2(3). By that definition, the term includes


"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. . . ."


We think that the argument misconstrues the statute. We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct -- to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property, which they would not have enjoyed had they remained at work. Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression. We find no such expression in the cited provision.


We think that the true purpose of Congress is reasonably clear. Congress was intent upon the protection of the right of employees to self-organization and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion. Labor Board v. Jones & Laughlin Steel Corp., supra, page p. 301 U. S. 33. To assure that protection, the employer is not permitted to discharge his employees because of union activity or agitation for collective bargaining. Associated Press v. Labor Board, supra. The conduct thus protected is lawful conduct.


Congress also recognized the right to strike -- that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Section 13 provides that nothing in the Act "shall be construed so as to interfere with or impede or diminish in any way the right to strike." But this recognition of "the right to strike" plainly contemplates a lawful strike -- the exercise of the unquestioned right to quit work. As we said in Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333, 304 U. S. 347,


"if men strike in connection with a current labor dispute, their action is not to be construed as a renunciation of the employment relation, and they remain employees for the remedial purposes specified in the act."


There is thus abundant opportunity for the operation of § 2(3) without construing it as countenancing lawlessness or as intended to support employees in acts of violence against the employer's property by making it impossible for the employer to terminate the relation upon that independent ground.


Here, the strike was illegal in its inception and prosecution. As the Board found, it was initiated by the decision of the Union committee "to take over and hold two of the respondent's key' buildings." It was pursuant to that decision that the men occupied the buildings and the work stopped. This was not the exercise of "the right to strike" to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner, and thus, by acts of force and violence, to compel the employer to submit. When the employees resorted to that sort of compulsion, they took a position outside the protection of the statute, and accepted the risk of the termination of their employment upon grounds aside from the exercise of the legal rights which the statute was designed to conserve.


[391] Decision 306 U.S. 240: National Labor Relations Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6-2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. https://supreme.justia.com/cases/federal/us/306/240/case.html


Concurrence:


I concur in so much of the Court's decision as holds that the Board was without statutory authority to order reinstatement of those employees who were discharged on February 17, 1937. But I rest this conclusion solely on the construction of § 2(3) and § 10(c) of the National Labor Relations Act. By § 10(c), the Board is given authority to reinstate in their employment only those who are "employees." Before the Board made its order, respondent's employees, by reason of their lawful discharge for cause, had lost their status as such, which would otherwise have been preserved to them under § 2(3). …


… I cannot attribute to Congress, in the adoption of § 2(3), explained as it was in the Senate Committee Report, a purpose to cut off the right of an employer to discharge employees who have destroyed his factory, and to refuse to reemploy them, if that is the real reason for his action. If a plainer indication of such a purpose had been given by the language of § 2(3), I should have thought it of sufficiently dubious constitutionality to require us to construe its language otherwise, if that could reasonably be done, leaving it to Congress to say so, in unmistakable language, if it really meant to impose that duty on the employer.


[392] Decision 306 U.S. 240: National Labor Relations Board v. Fansteel Metallurgical Corp. U.S. Supreme Court, February 27, 1939. Decided 6-2. Majority: Hughes, Butler, Cardozo, McReynolds, Roberts. Concurring in part: Stone. Dissenting in part: Reed, Black. https://supreme.justia.com/cases/federal/us/306/240/case.html


Dissent:


The point is made that an employer should not be compelled to reemploy an employee guilty, perhaps, of sabotage. This depends upon circumstances. It is the function of the Board to weigh the charges and countercharges and determine the adjustment most conducive to industrial peace. Courts certainly should not interfere with the normal action of administrative bodies in such circumstances. Here, both labor and management had erred grievously in their respective conduct. It cannot be said to be unreasonable to restore both to their former status. Such restoration would apply to the sit-down strikers and those striking employees who aided and abetted them.


I am of the view that the provisions of the order of the Board ordering an offer of reinstatement to the employees discussed above should be sustained. As the remainder of the order is affected by the determination upon this issue but not wholly controlled by the conclusions, no opinion is expressed as to the other requirements of the order.


[393] Webpage: "The Right to Strike." National Labor Relations Board. Accessed October 27, 2014 at http://www.nlrb.gov/strikes


Lawful and unlawful strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay. …


Strikes unlawful because of timing—Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision. …


Strikes unlawful because of misconduct of strikers. Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a "sitdown" strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:


• Strikers physically blocking persons from entering or leaving a struck plant.

• Strikers threatening violence against nonstriking employees.

• Strikers attacking management representatives.


[394] Webpage: "Frequently Asked Questions (FAQ)." International Brotherhood of Teamsters. Accessed October 29, 2014 at http://teamster.org/about/frequently-asked-questions-faq


"[B]ecause most contracts include a no-strike clause, they [strikes] typically occur only after a contract expires, not during the term of the contract."


[395] Webpage: "The Right to Strike." National Labor Relations Board. Accessed October 27, 2014 at http://www.nlrb.gov/strikes


If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. …


… Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers.


[396] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(a) Unfair labor practices by employer

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it…

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization…

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter;

(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.


[397] Ruling 304 U.S. 333: National Labor Relations Board v. Mackay Radio & Telegraph Co. U.S. Supreme Court, May 16, 1938. Decided 7-0. http://caselaw.lp.findlaw.com/…


Majority:


The respondent, a California corporation, is engaged in the transmission and receipt of telegraph, radio, cable, and other messages between points in California and points in other states and foreign countries. It maintains an office in San Francisco for the transaction of its business wherein it employs upwards of sixty supervisors, operators and clerks, many of whom are members of Local No. 3 of the American Radio Telegraphists Association, a national labor organization…. At midnight Friday, October 4, 1935, all the men there employed went on strike. The respondent, in order to maintain service, brought employees from its Los Angeles office and others from the New York and Chicago offices of the parent company to fill the strikers' places.


Although none of the San Francisco strikers returned to work Saturday, Sunday, or Monday, the strike proved unsuccessful in other parts of the country and, by Monday evening, October 7th, a number of the men became convinced that it would fail and that they had better return to work before their places were filled with new employees. One of them telephoned the respondent's traffic supervisor Monday evening to inquire whether the men might return. He was told that the respondent would take them back and it was arranged that the official should meet the employees at a downtown hotel and make a statement to them. Before leaving the company's office for this purpose the supervisor consulted with his superior, who told him that the men might return to work in their former positions but that, as the company had promised eleven men brought to San Francisco they might remain if they so desired, the supervisor would have to handle the return of the striking employees in such fashion as not to displace any of the new men who desired to continue in San Francisco. …


… It turned out that only five of the new men brought to San Francisco desired to stay.


Five strikers who were prominent in the activities of the union and in connection with the strike, whose names appeared upon the list of eleven, reported at the office at various times between Tuesday and Thursday. Each of them was told that he would have to fill out an application for employment; that the roll of employees was complete, and that his application would be considered in connection with any vacancy that might thereafter occur. These men not having been reinstated in the course of three weeks, the secretary of Local No. 3 presented a charge to the National Labor Relations Board that the respondent had violated section 8(1) and (3) of the National Labor Relations Act.4 Thereupon the Board filed a complaint charging that the respondent had discharged and was refusing to employ the five men who had not been reinstated to their positions for the reason that they had joined and assisted the labor organization known as Local No. 3 and had engaged in concerted activities with other employees of the respondent 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 section 75 of the National Labor Relations Act and so had been guilty of an unfair labor practice within the meaning of section 8(1) of the act. The complaint further alleged that the discharge of these men was a discrimination in respect of their hire and tenure of employment and a discouragement of membership in Local No. 3, and thus an unfair labor practice within the meaning of section 8(3) of the act. The respondent filed an answer denying the allegations of the complaint, and moved to dismiss the proceeding on the ground that the act is unconstitutional. …


The subsidiary or evidentiary facts were found in great detail and, upon the footing of them, the Board reached conclusions of fact to the effect that Local No. 3 is a labor organization within the meaning of the act; that, "by refusing to reinstate to employment" the five men in question, "thereby discharging said employees," the respondent by "each of said discharges," discriminated in regard to tenure of employment, and thereby discouraged membership in the labor organization known as Local No. 3, and, by the described acts, "has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act."


Second. Under the findings the strike was a consequence of, or in connection with, a current labor dispute as defined in section 2(9) of the act, 29 U.S.C.A. 152(9). That there were pending negotiations for the execution of a contract touching wages and terms and conditions of employment of point-to-point operators cannot be denied. But it is said the record fails to disclose what caused these negotiations to fail or to show that the respondent was in any wise in fault in failing to comply with the union's demands; and, therefore, for all that appears, the strike was not called by reason of fault of the respondent. The argument confuses a current labor dispute with an unfair labor practice defined in section 8 of the act, 29 U.S.C.A. 158. …


Third. The strikers remained employees under section 2(3) of the act, 29 U.S.C.A. 152(3), which provides: 'The term 'employee' 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….' Within this definition the strikers remained employees for the purpose of the act and were protected against the unfair labor practices denounced by it.


Fourth. It is contended that the Board lacked jurisdiction because respondent was at no time guilty of any unfair labor practice. Section 8 of the act denominates as such practice action by an employer to interfere with, restrain, or coerce employees in the exercise of their rights to organize, to form, join, or assist labor organizations, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or 'by discrimination in regard to … tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. …' There is no evidence and no finding that the respondent was guilty of any unfair labor practice in connection with the negotiations in New York. On the contrary, it affirmatively appears that the respondent was negotiating with the authorized representatives of the union. Nor was it an unfair labor practice to replace the striking employees with others in an effort to carry on the business. Although section 13 of the act, 29 U.S.C.A. 163, provides, 'Nothing in this Act (chapter) shall be construed so as to interfere with or impede or diminish in any way the right to strike,' 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. And he 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.7 The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice, nor was it such to reinstate only so many of the strikers as there were vacant places to be filled. But the claim put forward is that the unfair labor practice indulged by the respondent was discrimination in reinstating striking employees by keeping out certain of them for the sole reason that they had been active in the union. As we have said, the strikers retained, under the act, the status of employees. Any such discrimination in putting them back to work is, therefore, prohibiting by section 8. …


… As we have said, the respondent was not bound to displace men hired to take the strikers' places in order to provide positions for them.


[398] Webpage: "The Right to Strike." National Labor Relations Board. Accessed October 27, 2014 at http://www.nlrb.gov/strikes


Economic strikers defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.


Unfair labor practice strikers defined. Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.


If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.


[399] U.S. Code Title 29, Chapter 7, Subchapter II, Section 159: "Representatives and elections." Accessed March 21, 2014 at http://www.law.cornell.edu/uscode/text/29/159


"Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this subchapter in any election conducted within twelve months after the commencement of the strike."


[400] Decision JD-13-11: Spurlino Materials, LLC . By Jeffrey D. Wedekind (Administrative Law Judge). National Labor Relations Board, March 15, 2011. http://mynlrb.nlrb.gov/link/document.aspx/09031d458045ef5e


However, the law is clear that striking employees do not lose their protection from permanent replacement simply because only one of their goals is to reverse their employer's unfair labor practices, even if it is not their primary goal. See, e.g., Northern Wire v. NLRB, 887 F.2d 1313, 1319–1321 (7th Cir. 1989) ("A strike that is caused in whole or in part by an employer's unfair labor practices is an unfair labor practice strike"); NLRB v. Moore Business Forms, 574 F.2d 835, 840 (5th Cir. 1978) ("The employer's unfair labor practice need not be the sole or even the major cause or aggravating factor of the strike; it need only be a contributing factor"); General Drivers and Helpers Union, Local 662 v. NLRB, 302 F.2d 908, 911 (D.C. Cir. 1962) ("if an unfair labor practice had anything to do with causing the strike, it was an unfair labor practice strike"), cert. denied 83 S.Ct. 48 (1962).


[401] Webpage: "Frequently Asked Questions (FAQ)." International Brotherhood of Teamsters. Accessed October 29, 2014 at http://teamster.org/about/frequently-asked-questions-faq


Most strikes are called for economic reasons—to improve wages, health benefits, retirement benefits, etc. …


Strikes can be called at any time if extremely unsafe working conditions occur or if the company has participated in an "unfair labor practice." But these types of noneconomic strikes are very rare.


[402] Article: "Kim Moody interview: The superpower's shopfloor." By Martin Smith. International Socialism, July 2, 2007. http://www.isj.org.uk/index.php4?s=about


"I was one of the co-founders of Labor Notes in 1979. It is an independent national monthly magazine that goes out to trade union activists."


[403] Article: "Making Sure a Strike Centers On Unfair Labor Practices." By Robert M. Schwartz. Labor Notes, August 8, 2012. http://www.labornotes.org/…


[404] Webpage: "The Right to Strike." National Labor Relations Board. Accessed October 27, 2014 at http://www.nlrb.gov/strikes


"If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated."


[405] "2013 Performance and Accountability Report." National Labor Relations Board, December 2, 2013. http://www.nlrb.gov/…


Page 38:


• Acting on the results of professional staff investigations, which produced a reasonable cause to believe unfair labor practices had been committed, Regional Offices of the NLRB issued 1,272 complaints, setting the cases for hearing


• A 92.8 percent settlement rate was achieved in the Regional Offices in meritorious ULP cases


• The Regional Offices won 85.7 percent of Board and ALJ ULP and Compliance decisions in whole or part in FY 2013


• A total of $16,245,665 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines with 1,352 employees offered reinstatement


[406] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 11: "Likewise the right to picket is subject to limitations and qualifications. As with the right to strike, picketing can be prohibited because of its object or its timing, or misconduct on the picket line. In addition, Section 8(b)(7) declares it to be an unfair labor practice for a union to picket for certain objects whether the picketing accompanies a strike or not."


[407] U.S. Code Title 29, Chapter 7, Subchapter II, Section 157: "Representatives and elections." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/157


"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…."


[408] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


(b) Unfair labor practices by labor organization

(B) (ii) (4) … "[N]othing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing…" …


(g) Notification of intention to strike or picket at any health care institution

A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Mediation and Conciliation Service of that intention, except that in the case of bargaining for an initial agreement following certification or recognition the notice required by this subsection shall not be given until the expiration of the period specified in clause (B) of the last sentence of subsection (d) of this section. The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the written agreement of both parties.


[409] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


[410] Decision 355 NLRB 159: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3-2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. http://www.huntonfiles.com/…


Page 6:


The core conduct that renders picketing coercive under Section 8(b)(4)(ii)(B) is not simply the holding of signs (in contrast to the distribution of handbills), but the combination of carrying of picket signs and persistent patrolling of the picketers back and forth in front of an entrance to a work site, creating a physical or, at least, a symbolic confrontation between the picketers and those entering the worksite. … A year later, in Alden Press, Inc., 151 NLRB 1666, 1668 (1965), the Board adopted the Second Circuit's view in Furniture Workers that " '[o]ne of the necessary conditions of 'picketing' is a confrontation in some form between union members and employees, customers, or suppliers who are trying to enter the employer's premises.' " (Quoting 337 F.2d at 940). See also Sheet Metal Workers' Local 15 v. NLRB, 491 F.3d 429, 438 (D.C. Cir. 2007) ("mock funeral" procession outside a hospital did not constitute picketing, because the participants did not "physically or verbally interfere with or confront Hospital patrons" or create a "symbolic barrier"). To fall within the prohibition of Section 8(b)(4)(ii)(B), picketing must entail an element of confrontation.


Pages 7-8:


We acknowledge that prior Board decisions have used broader language to define picketing. In Lumber & Sawmill Workers Local 2797 (Stoltze Land & Lumber Co.), 156 NLRB 388, 394 (1965), cited prominently by the dissent, the Trial Examiner, in a decision affirmed by the Board, stated, "The important feature of picketing appears to be the posting by a labor organization … of individuals at the approach to a place of business to accomplish a purpose which advances the cause of the union, such as keeping employees away from work or keeping customers away from the employer's business."


[411] Decision 355 NLRB 159: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3-2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. http://www.huntonfiles.com/…


Dissent:


The National Labor Relations Act protects the right of employees to invoke economic weaponry, including strikes and picketing, to bring pressure to bear on employers with whom they have a primary labor dispute. …


Indeed, the Supreme Court has endorsed the Board's broader and flexible view of picketing in a line of cases dating back many decades. See Tree Fruits, supra, 377 U.S. at 76 (Black, J., concurring)(emphasis added) (" 'Picketing,' in common parlance and in § 8(b)(4)(ii)(B)," includes the concept of "patrolling, that is, standing or marching back and forth or round and round on the streets, sidewalks, private property, or elsewhere, generally adjacent to someone else's premises[.]"); Thornhill v. State of Alabama, 310 U.S. 88, 101 fn. 18 (1940) (picketing includes merely observing workers or customers, persuading "employees or customers not to engage in relations with the employer. . . through the use of banners . . ." and may include threatening employees or customers . . . . by the mere presence of the picketer" which "may be a threat of, (i) physical violence, [or] (ii) social ostracism, being branded in the community as a 'scab' ") (emphasis added). There is no indication that the DeBartolo II Court thought it was overturning these principles, and there is no justification for the majority to do so now.33


[412] Photo: "Protesters picket for higher wages outside a McDonalds restaurant in Detroit on Thursday, May 15, 2014." By Paul Sancya/Associated Press. Used under license.


"Calling for higher pay and the right to form a union without retaliation, fast-food chain workers protested Thursday as part of a wave of strikes and protests in 150 cities across the U.S. and 33 additional countries on six continents."


Protesters picket for higher wages outside a McDonalds restaurant in Detroit on Thursday, May 15, 2014.


[413] Decision 355 NLRB 159: United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason & Knuth of Arizona, Inc. National Labor Relations Board, August 27, 2010. Decided 3-2. Majority: Liebman, Becker, Pearce. Dissent: Schaumber, Hayes. http://www.huntonfiles.com/…


Pages 5-6:


Moreover, the consequences of categorizing peaceful expressive activity as proscribed picketing are severe. The activity is stripped of protection and employees participating in it can be fired. See, e.g., Motor Freight Drivers Local 707 (Claremont Polychem. Corp.), 196 NLRB 613, 614 (1972) (strikers who picketed in violation of Sec. 8(b)(7)(B) not entitled to reinstatement); Hardee's Food Systems, Inc., 294 NLRB 642, 646 (1989)("Actions that violate Section 8(b) are not protected by the Act even if those actions would otherwise be protected by Sections 7 and 8(a)."), review denied sub nom. Laborers Local 204 v. NLRB, 904 F.2d 715 (D.C. Cir. 1990). The activity becomes an unfair labor practice and the Board is required, upon a finding of "reasonable cause" to believe such activity has occurred, to go into federal district court and seek a prior restraint against the continuation of the activity. See 29 U.S.C. §10(l). And, finally, a labor organization engaged in such activity is subject to suit in Federal court where damages can be awarded. See 29 U.S.C. §187. For each of these reasons, we must take care not to define the category of proscribed picketing more broadly than clearly intended by Congress.18


[414] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 26:


Examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union or its agents include the following:


• Mass picketing in such numbers that nonstriking employees are physically barred from entering the plant.

• Acts of force or violence on the picket line, or in connection with a strike.


[415] Webpage: "Employer/Union Rights and Obligations." National Labor Relations Board. Accessed July 7, 2014 at http://www.nlrb.gov/…


" Examples of labor organization conduct that violates the law … Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute."


[416] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Pages 29-31:


Section 8(b)(4)—Prohibited Strikes and Boycotts. Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain purposes or "objects" as they are called in the Act. The proscribed action is listed in clauses (i) and (ii), the objects are described in subparagraphs (A) through (D). A union commits an unfair labor practice if it takes any of the kinds of action listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in the four subparagraphs.


Proscribed action: Inducing or encouraging a strike work stoppage or boycott. Clause (i) forbids a union to engage in a strike, or to induce or encourage a strike, work stoppage, or a refusal to perform services by "any individual employed by any person engaged in commerce or in an industry affecting commerce" for one of the objects listed in subparagraphs (A) through (D). The words "induce and encourage" are considered by the U. S. Supreme Court to be broad enough to include every form of influence or persuasion. For example, it has been held by the NLRB that a work stoppage on a picketed construction project was "induced" by a union through its business agents who, when they learned about the picketing, told the job stewards that they (the business agents) would not work behind the picket line. It was considered that this advice not only induced the stewards to leave the job, but caused them to pass the information on to their fellow employees, and that such conduct informed the other employees that they were expected not to work behind the picket line. The world "person" is defined in Section 2(1) as including "one or more individuals, labor organizations, partnerships, associations, corporations," and other legal persons. As so defined, the word "person" is broader than the word "employer." For example, a railroad company, although covered by the Railway Labor Act, is excluded from the definition of "employer" in the National Labor Relations Act and, therefore, neither the railroad company nor its employees are covered by the National Labor Relations Act. But a railroad company is a "person engaged in commerce" as defined above and, therefore, a labor organization is forbidden to "induce or encourage" individuals employed by a railroad company to engage in a strike, work stoppage, or boycott for any of the objects in subparagraphs (A) through (D).


Proscribed action: Threats, coercion, and restraint. Clause (ii) makes it an unfair labor practice for a union to "threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce" for any of the proscribed objects. Even though no direct threat is voiced by the union, there may nevertheless be coercion and restraint that violates this clause. For example, when a union picketed a construction job to bring about the removal of a nonunion subcontractor in violation of Section 8(b)(4)(B), the picketing induced employees of several other subcontractors to stop work. When the general contractor asked what could be done to stop the picketing, the union's business agent replied that the picketing would stop only if the nonunion subcontractor were removed from the job. The NLRB held this to be "coercion and restraint" within the meaning of clause (ii).


Subparagraph (A)—Prohibited object: Compelling membership in an employer or labor organization or compelling a hot cargo agreement. Section 8(b)(4)(A) prohibits unions from engaging in clause (i) or (ii) action to compel an employer or self-employed person to join any labor or employer organization or to force an employer to enter a hot cargo agreement prohibited by Section 8(e). Examples of violations of this section are: Examples of violations of Section 8(b)(4)(A).


• In an attempt to compel a beer distributor to join a union, the union prevents the distributor from obtaining beer at a brewery by inducing the brewery's employees to refuse to fill the distributor's orders.

• In an attempt to secure for its members certain stevedoring work required at an employer's unloading operation, the union pickets to force the employer to join an employer association with which the union has a contract.

• A union pickets an employer (one not in the construction and garment industries), or threatens to picket it, to compel that employer to enter into an agreement whereby the employer will only do business with persons who have an agreement with a union.


Subparagraph (B)—Prohibited object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) contains the Act's secondary boycott provision. A secondary boycott occurs if a union has a dispute with Company A and, in furtherance of that dispute, causes the employees of Company B to stop handling the products of Company A, or otherwise forces Company B to stop doing business with Company A. The dispute is with Company A, called the "primary" employer, the union's action is against Company B, called the "secondary" employer, hence the term "secondary boycott." In many cases the secondary employer is a customer or supplier of the primary employer with whom the union has the dispute. In general, the Act prohibits both the secondary boycott and the threat of it. Examples of prohibited secondary boycotts are:


Examples of violations of Section 8(b)(4)(B).


• Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

• Asking the employees of a plumbing contractor not to work on connecting up air-conditioning equipment manufactured by a nonunion employer whom the union is attempting to organize.

• Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union.

• Telling an employer that its plant will be picketed if that employer continues to do business with an employer the union has designated as "unfair."


The prohibitions of Section 8(b)(4)(B) do not protect a secondary employer from the incidental effects of union action that is taken directly against the primary employer. Thus, it is lawful for a union to urge employees of a secondary supplier at the primary employer's plant not to cross a picket line there. Section 8(b)(4)(B) also does not proscribe union action to prevent an employer from contracting out work customarily performed by its employees, even though an incidental effect of such conduct might be to compel that employer to cease doing business with the subcontractor. …


Subparagraph (C)—Prohibited object: Compelling recognition of a union if another union has been certified. Section 8(b)(4)(C) forbids a labor organization from using clause (i) or (ii) conduct to force an employer to recognize or bargain with a labor organization other than the one that is currently certified as the representative of its employees. Section 8(b)(4)(C) has been held not to apply when the picketing union is merely protesting working conditions that are substandard for the area.


Subparagraph (D)—Prohibited object: Compelling assignment of certain work to certain employees. Section 8(b)(4)(D) forbids a labor organization from engaging in action described in clauses (i) and (ii) for the purpose of forcing any employer to assign certain work to "employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class." The Act sets up a special procedure for handling disputes over work assignments that will be discussed later in this material (see p. 38).


[417] U.S. Code Title 29, Chapter 7, Subchapter II, Section 158: "Unfair labor practices." Accessed May 27, 2014 at http://www.law.cornell.edu/uscode/text/29/158


It shall be an unfair labor practice for a labor organization or its agents— …


(4)

(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—

(A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;

(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

(C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title;

(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work:

Provided, That nothing contained in this subsection shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; …


(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

(A) where the employer has lawfully recognized in accordance with this subchapter any other labor organization and a question concerning representation may not appropriately be raised under section 159 (c) of this title,

(B) where within the preceding twelve months a valid election under section 159 (c) of this title has been conducted, or

(C) where such picketing has been conducted without a petition under section 159 (c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159 (c)(1) of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.

Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this subsection.


(e) Enforceability of contract or agreement to boycott any other employer; exception

It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)(4)(B) of this section the terms "any employer", "any person engaged in commerce or an industry affecting commerce", and "any person" when used in relation to the terms "any other producer, processor, or manufacturer", "any other employer", or "any other person" shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforcement of any agreement which is within the foregoing exception.


[418] "Basic Guide to the National Labor Relations Act: General Principles of Law Under the Statute and Procedures of the National Labor Relations Board." National Labor Relations Board, Office of the General Counsel, 1997. http://www.nlrb.gov/…


Page 31:


Publicity such as handbilling allowed by Section 8(b)(4). The final provision in Section 8(b)(4) provides that nothing in Section 8(b)(4) shall be construed "to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer." Such publicity is not protected if it has "an effect of inducing any individual employed by any persons other than the primary employer" to refuse to handle any goods or not to perform services. The Supreme Court has held that this provision permitted a union to distribute handbills at the stores of neutral food chains asking the public not to buy certain items distributed by a wholesaler with whom the union had a primary dispute. Moreover, it has also held that peaceful picketing at the stores of a neutral food chain to persuade customers not to buy the products of a struck employer when they traded in these stores was not prohibited by Section 8(b)(4).


[419] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Pages 83-84:


Strike, Work Stoppage or Slowdown


Section 7116(b)(7) of the Statute states that it is an unfair labor practice for a union:


(A) To call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or (B) To condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity …


When is picketing a violation of section 7116(b)(7)?


• When it interferes with an agency's operations. This is decided by looking at factors such as the government interest involved, the sensitivity of the agency's function and its purpose, where the picketed agency is located, how long the picketing lasts, and the number and actions of the picketers.


[420] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 81:


Unlawful Discipline of Members


Section 7116(b)(3) of the Statute makes it an unfair labor practice for a union: To coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee …


What is the purpose of section 7116(b)(3)?


• Congress included this section to try to protect union members from union actions that interfere with union members' job duties. Congress wanted to ensure that: (1) employees will be able to perform their duties, even if the union takes an action against one of its members; and (2) the government will be able to effectively and efficiently conduct its business without interference from union actions against their members. AFGE, Local 1738, 29 FLRA 178 (1987).


Pages 83-84:


Strike, Work Stoppage or Slowdown


Section 7116(b)(7) of the Statute states that it is an unfair labor practice for a union:


(A) To call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or (B) To condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity …


[421] Encyclopedia of U.S. Labor and Working-Class History (Volume 1, A-F). Edited by Eric Arnesen. Routledge, 2007. Page 1476:


In August 1981, 13,000 members of the Professional Air Traffic Controllers' Organization (PATCO) at the nation's airports went on strike in defiance of a 1955 law making such strikes illegal. Two days later President Ronald Reagan fired the 11,359 controllers who had failed to return to their jobs. The strike was broken, with public opinion showing popular support for the president's actions. Seventeen months later PATCO called off the strike in complete defeat.


[422] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 83: "The Professional Air Traffic Controller's Organization (PATCO) called, participated in, and supported a strike at FAA facilities. As a result, PATCO lost, by definition, its status as a labor organization under Section 7103(a)(4) of the Statute. The remedy included decertification. Prof'l Air Traffic Controller's Org., 7 FLRA 34 (1981)."


[423] Book: Human Resources Management for Public and Nonprofit Organizations: A Strategic Approach (4th edition). By Joan E. Pynes. John Wiley & Sons, 2013.


However, there is little consistency across the states in which employees are covered and the conditions that permit them to strike.


Among states that permit strikes by public employees, a clear delineation is made between employees who are permitted to strike and those prohibited from striking. Most states limit permission to employees who are not responsible for the public's welfare. …


In most states that permit public employee strikes, a set of stipulations must be adhered to before a strike is considered allowable. …


Even where strikes are permitted, many state statutes grant courts the authority to issue injunctions or restraining orders if the strike presents a danger to public health or safety.


[424] Paper: "Compulsory Arbitration: The Scope of Judicial Review." By Victor Cohen. St. John's Law Review, Spring 1977. Pages 604-631. http://scholarship.law.stjohns.edu/…


Page 606: "[S]ome states now grant public employees a limited right to strike…."


[425] Paper: "Binding Interest Arbitration in the Public Sector: Is It Constitutional?" William & Mary Law Review, 1977. Pages 787-821. http://scholarship.law.wm.edu/…


Page 787:


Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. ALASKA STAT. § 23.40.200 (1972); HAWAII REV. STAT. § 89-12 (Supp. 1975); MINN. STAT. ANN. § 179.64 (West Cum. Supp. 1976); MONT. REV. CODES ANN. § 41-2209 (Cum. Supp. 1975); ORE. REV. STAT. § 243.726 (1975); PA. STAT. ANN. tit. 43, § 1101.1003 (Purdon Cum. Supp. 1976-1977); VT. STAT. ANN. tit. 21, § 1730 (Cum. Supp. 1976).


[426] Handbook on Human Service Administration. Edited by Jack Rabin and Marcia B. Steinhauer. CRC Press, 1988. Chapter 7: "Personnel Management." By Donald E. Klingner. Pages 318-319:


Strikes are almost always illegal for public employees, although they have increased in number significantly over the past two decades. Most public employee strikes are by local government employees, and the one professional group of employees most likely to strike is teachers. …


As in the laws governing federal employees, often there are very severe penalties in state laws for striking workers and labor organizations, but these penalties often are not imposed.


[427] Paper: "Binding Interest Arbitration in the Public Sector: Is It Constitutional?" William & Mary Law Review, 1977. Pages 787-821. http://scholarship.law.wm.edu/…


Pages 787-788:


Strikes by firemen, policemen, and other public employees in New York State in 1975 increased 100 percent in one year; the number of public employees involved in these work stoppages swelled 1800 percent.1 Similar illegal2 behavior, resulting in disruption of public services, is increasing rapidly throughout the United States.3 In an effort to reverse the trend of work stoppages following deadlocked negotiations,4 at least thirty-four states5 and a number of local governments6 have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator's decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer's money.7 local governments6 have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator's decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer's money.7 In reality, however, public employee unrest continues.8


1. (1976) GOV'T EMPL. REL. REP. (BNA) No. 670 D-3, citing New York Public Employment Relations Board 1975 Annual Report. In 1974 there were 16 strikes involving 4,100 public employees; in 1975 there were 32 strikes involving 77,745 public employees. Id.


2. Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. ALASKA STAT. § 23.40.200 (1972); HAWAII REV. STAT. § 89-12 (Supp. 1975); MINN. STAT. ANN. § 179.64 (West Cum. Supp. 1976); MONT. REV. CODES ANN. § 41-2209 (Cum. Supp. 1975); ORE. REV. STAT. § 243.726 (1975); PA. STAT. ANN. tit. 43, § 1101.1003 (Purdon Cum. Supp. 1976-1977); VT. STAT. ANN. tit. 21, § 1730 (Cum. Supp. 1976).


3. (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


4. McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).


5. The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: Alabama, Alaska, Connecticut, Delaware, Hawaii, Indiana, Iowa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. 1971 ALA. ACTS ch. 993, § 21(b) (mass transit); ALASKA STAT. § 23.40.200 (1972) (policemen, firemen, jail and correctional institution employees, and hospital employees); CONN. GEN. STAT. ANN. § 7-473 (West 1958 & Cum. Supp. 1976) (local); DEL. CODE tit. 2, § 1613 (1974) (mass transit); HAWAII REV. STAT. § 89-11 (Supp. 1975) (state and local); IND. CODE ANN. § 22-6-4-12 (Burns Cum. Supp. 1976) (state and local); IOWA CODE ANN. § 90.15 (West 1972) (firemen); LA. REV. STAT. ANN. § 23:890 (West Cum. Supp. 1976) (mass transit); ME. REv. STAT. tit. 26, § 965(4) (Cum. Supp. 1976-1977) (local); ME. REV. STAT., tit. 26, § 979-D(4) (1964) (state); ME. REV. STAT. tit. 26, § 1026(4) (Cum. Supp. 1976-1977) (university employees); MASS. GEN. LAWS ANN. ch. 150E, § 9 (West Cum. Supp. 1976-1977) (state and local); MICH. CoMP. LAWS ANN. §§ 423.231-.240 (Cum. Supp. 1976-1977) (police and firemen); MINN. STAT. ANN. § 179.38 (West Cum. Supp. 1976) (hospital employees); MINN. STAT. ANN. § 179.72 (West Cum. Supp. 1976) (essential employees); MONT. REv. CODES ANN. § 59-1614(9) (Cum. Supp. 1975) (state and local); NEB. REV. STAT. § 48-810 to 819 (Supp. 1974) (state and local); NEV. REv. STAT. § 288.200 (1973) (local); N.H. REv. STAT. ANN. § 273-A:12 (Supp. 1975) (state and local); N.J. STAT. ANN. § 34:13A-7 (West 1965) (state and local); N.J. STAT. ANN. § 40:37A-96 (West Cum. Supp. 1976-1977) (mass transit); N.M. STAT. ANN. § 14-53-15 (1976) (mass transit); N.Y. CIv. SERV. LAW § 205.3 (McKinney Cum. Supp. 1975-1976) (police and firemen); OHIO REv. CODE ANN. § 306.12 (Page Supp. 1975) (mass transit); OKLA. STAT. ANN. tit. 11, § 548.1 (West Supp. 1976-1977) (police and firemen); ORE. REv. STAT. § 243.712(2)(c) (1975) (state and local); ORE. REv. STAT. § 243.742 (1975) (police, firemen, guards at mental and correctional institutions); PA. STAT. ANN. tit. 43, §§ 1101.804-.805 (Purdon Cum. Supp. 1976-1977) (state and local); PA. STAT. ANN. tit. 43, § 217.4 (Purdon Cum. Supp. 1976-1977) (police and firemen); PA. STAT. ANN. tit. 53, § 39951 (Purdon Cum. Supp. 1976-1977) (mass transit); PA. STAT. ANN. tit. 55, § 563.2 (Purdon 1964) (port authority); R.I. GEN. LAWS § 28-9.1-7 (1968) (firemen); R.I. GEN. LAws § 28-9.2-7 (1968) (police); R.I. GEN. LAWS § 28-9.3-9 (1968) (teachers); R.I. GEN. LAWS § 28-9.4-10 (1968) (municipal employees); R.I. GEN. LAWS § 28-9.5-9 (Supp. 1976), reprinted in [1976 Reference File - 124] GOV'T EMPL. REL. REP. (BNA) 51:4817 (school administrators); R.I. GEN. LAWS § 36-11-9 (Supp. 1975) (state); R.I. GEN. LAWS § 39-18-17 (1969) (mass transit); S.D. COMPILED LAWS ANN. § 9-14A (Cum. Supp. 1975) (police and firemen); TENN. CODE ANN. § 6-3802 (Supp. 1976) (mass transit); TEx. REV. CIv. STAT. ANN. art. 5154c-9 to -15 (Vernon Cum. Supp. 1976-1977) (police and firemen); UTAH CODE ANN. § 34-20a-7 (Supp. 1975) (firemen); VT. STAT. ANN. tit. 3, § 925 (Cum. Supp. 1976) (state); VT. STAT. ANN. tit. 21, § 1733 (Cum. Supp. 1976) (local); VA. CODE ANN. § 15.1-1357.2 (Cum. Supp. 1976) (mass transit); WASH. REV. CODE ANN. § 41.56.450 (Supp. 1975) (police and firemen); WASH. REV. CODE ANN. § 53.18.030 (Supp. 1975) (port authority); W. VA. CODE § 8-27-21 (1976) (mass transit); Wis. STAT. ANN. § 111.70 (West 1974) (Milwaukee police); Wis. STAT. ANN. § 111.77 (West 1974) (police and firemen); Wyo. STAT. § 27-269 (1967) (firemen).


6. See, e.g., SAN FRANCISCO, CAL., ADMIN. CODE, art. XI.A, § 16.216 (1974), reprinted in [1974 Reference File - 811 Gov'T EMPL. REL. REP. (BNA) 51:1437 (local); NEW YORK CITY, N.Y., ADMIN. CODE ch. 54, § 1173-8.0 (1972), reprinted in [1972 Reference File - 40] GOV'T EMPL. REL. REP. (BNA) 51:4167 (local).


7. See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).


8. See (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


[428] Report: "Unfair Labor Practice Case Law Outline." By Julia Akins Clark. Federal Labor Relations Authority, Office Of The General Counsel, January 4, 2013. http://www.flra.gov/webfm_send/670


Page 74: "Where a union is acting as the exclusive representative of bargaining unit employees, it has to represent all unit employees without discrimination. This includes employees who are not dues-paying members of the union."


Page 80:


Are there any situations in which unions can treat non-members differently than members?


• Yes. A union may limit participation in its meetings to members, NFFE, Local 1827, 49 FLRA 738, 741 (1994), and has the right to choose its own representatives, AFSCME, Local 2910, 23 FLRA 352 (1986). All unit employees are entitled to vote in an election to determine whether there will be union representation. But once a union is chosen as the exclusive representative, the union then acts for, and negotiates collective-bargaining agreements covering, all employees. Its members ratify and approve such agreements in the manner provided by the labor organization's governing requirements. AFGE, Local 2000, AFL-CIO, 14 FLRA 617 (1984).


[429] Book: Human Resource and Contract Management in the Public School: A Legal Perspective . By Bernadette Marczely and David W. Marczely. Scarecrow Press, 2002. Page 30:


Employees who join the union will also have the right to fully participate in the union's decision-making process. They will vote on the adoption or rejection of union initiatives, contract proposals, and on the decision to strike. They will also have the opportunity to monitor and perhaps participate in the in the selection of the union's negotiating team and in the way the union allots its funding. Nonmembers, even those compelled to pay fair share fees, will not have a direct say in the way the union conducts its business.


[430] Webpage: "If We Decide to Strike: Q&A for University Members." SEIU Local 503 Sublocal 085: University of Oregon, July 30, 2013. http://local085.seiu503.org/…


Who decides to conduct a strike?

You do. Our Union Bargaining Team will ask for authorization from members to initiate a strike, if necessary to move the university system, and all members will have the right to vote on the decision. If a strike occurs, the bargaining team would also make the decision to call for a vote of the membership to end the strike.


Who can vote?

All members in good standing. Fair share payers must first sign up as members to become eligible to vote.


[431] Paper: "Two faces of union voice in the public sector." By Morley Gunderson. Journal of Labor Research, Summer 2005. http://link.springer.com/article/10.1007%2Fs12122-005-1012-6


Page 405:


The economic case for and against unions to a large degree depends on the extent to which markets (in the private sector) and organizations (in the public sector) operate efficiently or cost effectively. In the private sector, the increased number of "sellers" arising from trade liberalization, global competition, and deregulation as well as greater consumer choice arising from improvements in information and reductions in transactions costs have helped meet the assumptions required for private sector markets to be efficient, invariably moving them in the direction of greater efficiency. The accompanying decline in private sector unions suggest that any positive voice function was insufficient to offset the monopoly face of unionization in the private sector.


In the public sector, there is no clear benchmark or "competitive norm" from which to develop a scorecard for evaluating the pros and cons of public sector unions. There is certainly more potential for organizational slack and hence a positive shock effect from voice--but this also means more potential for muscle forms of voice for purposes of rent seeking. There is also less rationale for unions to " 'protect the underdog" in the public sector given the already existing public sector rents and the pressure for public sector employers to be model employers, but this also means that unions may use muscle to protect those rents.


[432] Article: "Labor movement." Contributor: Daniel Quinn Mills, Ph.D., Professor of Business Administration, Harvard University. World Book Encyclopedia, 2007 Deluxe Edition.


"Apprenticeship is a formal system of training young people for skilled trades, such as bricklaying and printing. Unions in these trades conduct apprenticeship programs in cooperation with employers and vocational high schools. The training combines on-the-job experience with individual or classroom instruction."


[433] Paper: "The economic effects of labor unions revisited." By Richard Vedder and Lowell Gallaway. Journal of Labor Research, Winter 2002. Pages 105-130. http://link.springer.com/article/10.1007%2Fs12122-002-1021-7


"On the other hand, proponents of the concept of efficiency wages and others might argue that the positive effect of unionization on worker morale might raise productivity and possibly economic growth (Krueger and Summers, 1988; Katz, 1986; Altenburg and Straub, 1998)."


[434] Paper: "Two faces of union voice in the public sector." By Morley Gunderson. Journal of Labor Research, Summer 2005. http://link.springer.com/article/10.1007%2Fs12122-005-1012-6


Paper: "Two faces of union voice in the public sector." By Morley Gunderson. Journal of Labor Research, Summer 2005. http://link.springer.com/article/10.1007%2Fs12122-005-1012-6


Page 404: "[Union] voice can also be used more positively by articulating preferences and trade-offs, improving communications, and involving employees and enhancing their commitment to the organization."


[435] Article: "Found to Have Misbehaved With Pupils, but Still Teaching." By David W. Chen and Patrick Mcgeehan. New York Times, April 5, 2012. http://www.nytimes.com/…


"But to union officials, the right to an impartial hearing is sacrosanct, to protect teachers from losing their livelihoods because a principal or a student might have an ax to grind."


[436] Public Law 74-198: "National Labor Relations Act of 1935" (a.k.a. "Wagner Act"). 74th U.S. Congress. Signed into law by Franklin Delano Roosevelt on July 5, 1935. http://www.fofweb.com/…


The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce by (a) impairing the efficiency, safety, or operation of the instrumentalities of commerce; (b) occurring in the current of commerce; (c) materially affecting, restraining, or controlling the flow of raw materials or manufactured or processed goods from or into the channels of commerce, or the prices of such materials or goods in commerce; or (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce.


The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.


Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.


It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.


[437] Book: Managing for the Future. By Peter F. Drucker. Routledge, 2013. Pages 114-115:


In all the hundreds of books, articles, and speeches on American competitiveness – or the lack thereof – work rules and job restrictions are rarely mentioned. Such rules forbid a foreman to do any production work, whether taking the place of a worker who goes to a restroom, repairing a tool, or helping when the work falls behind. They forbid electricians to straighten a stud wen installing a fuse box. They forbid workers moving from one job to another, thus restricting them to narrow repetitive tasks, e.g., spray-painting the door panel of a car. …


The best evidence for the effect of work rules and job restrictions is found in America's building industry. It alone of all major industries anywhere has – working side by side – union shops with tight restrictions and nonunion shops without them. Both shops are often owned by the same company – it's called 'double-breasting' in the industry – with the same people running them. The time it takes to do an individual job, e.g. connecting a drainpipe, is exactly the same in both. Yet the crew working under work rules and job restrictions needs two-thirds more people to do the same job in the same time.


A 'double-breasted' contractor recently ran a study on two nearly identical projects done by his company, one by a union crew, and the other by a nonunion crew. The nonunion crew worked an average of 50 minutes out of every hour. The union crew worked 35; the rest of the time it was forced to wait – for someone to come back from the restroom or for a journeyman to become available to do work an apprentice could easily have done but was not allowed to touch. The unionized crew also had to work short-handed for 40 minutes until a man qualified to drive a truck had come back from the shop with a replacement part. When that happened on the nonunion project, the foreman ran the errand and the work continued.


The result: the unionized crew required a crew of eight, the nonunion jobs was done by five workers.


[438] Book: The Transformation of American Industrial Relations. By Thomas A. Kochan, Harry C. Katz, and Robert B. McKersie. Cornell University Press, 1994. Pages 107-108:


Summary


Although this chapter has drawn on a wide variety of different samples and studies, the evidence can be pieced together to form a consistent pattern. First, there are clear differences in the ways the generic functions of workplace industrial relations are carried out in traditional union systems and newer nonunion systems. The design of new nonunion systems offers greater flexibility in the management and allocation of human resources. Second, nonunion systems, on average, have lower labor costs and appear to retain their wage and fringe-benefit costs advantage over time. While union plants may have some offsetting productivity advantages that our research has failed to identify, the magnitude of observed cost differentials appears to be large enough to make the union plants less profitable. Furthermore, the investment behavior of corporate executives appears to be consistent with this interpretation.


[439] Book: Beyond Unions and Collective Bargaining. By Leo Troy. M.E. Sharpe, 1999. Page 80:


Other studies also confirm the anticipated an actual experience of the greater flexibility in work assignments (restricted by union work rules), unit labor costs, and their effects on profits in nonunion compared to unionized firms. …


Employers who have dealt with union work rules and their impact on productivity declare that union work rules and their effects on efficiency are neither opaque nor ambiguous: unions reduce efficiency. Indeed, when informed that some academics contend either that unions enhance productivity or that their statistical results are ambiguous, these employers are incredulous. If the academics' findings were reliable, they say, employers would petition unions to organize their employees.


[440] Paper: "The economic effects of labor unions revisited." By Richard Vedder and Lowell Gallaway. Journal of Labor Research, Winter 2002. Pages 105-130. http://link.springer.com/article/10.1007%2Fs12122-002-1021-7


The upshot of the unionization [of the steel industry] was a dramatic increase in the wages of workers and an equally dramatic decline in employment. From the last quarter of 1936 (the last quarter before U.S. Steel signed a collective bargain agreement) to the second quarter of 1938 (about eight months after the end of the Little Steel strikes), money wages per hour rose more than 21 percent (amidst double-digit national unemployment!), and manhours worked in steel mills fell by more than 51 percent, reversing employment gains that had occurred during 1936 when money wages were relatively stable and real unit labor costs were actually falling because of rising productivity (Vedder and Gallaway, 1997, p. 136).


[441] Textbook: Economics: Private and Public Choice (15th edition). By James D. Gwartney and others. Cengage Learning, 2015. Page 675:


[W]hen there are good substitutes for union labor, employers will turn to the substitutes and cut back on their use of union labor as it becomes more expensive. Under these circumstances, higher union wages will price the union workers out of the market and lead to a sharp reduction in their employment.


Some employers may be able to automate various production operations—in effect substituting machines for union workers if their wages increase. …


Within a given plant, a union will negotiate wages and employment conditions for all workers, both union and nonunion. However, as union wages rise, it may be economical for unionized firms to contract with nonunionized firms to handle specific operations or to supply various components used in production. … They [large employers] may be able to substitute nonunion for union labor by shifting more and more of their production to their nonunion plants, including those located overseas or in right-to-work states, in which unions are generally weaker.


[442] Paper: "Outsourcing and union power." By Charles R. Perry. Journal of Labor Research, Fall 1997. Pages 521-534. http://link.springer.com/article/10.1007/s12122-997-1020-9


The redistribution of membership within a union as a result of outsourcing is likely to have little immediate impact on union power. However, as even the best case scenario presented above suggests, it may have significant long-run deleterious effects on union bargaining power by taking labor out of a sheltered market and putting it into potentially competitive market. …


The most obvious threat to union power comes from outsourcing that diminishes union membership overall by transferring jobs from union to nonunion employers. …


… The effect of outsourcing, whatever its rationale or scenario, appears to be to put union labor back into competition. Thus, outsourcing constitutes yet another challenge to the labor movement in its ongoing and seemingly increasingly unsuccessful battle to take and keep U.S. union labor out of competition by proving itself able and willing to organize to the extent of the market and standardizing wages in that market.


[443] Ruling 321 U.S. 332: J.I. Case Co. v. National Labor Relations Board. U.S. Supreme Court, February 28, 1944. Decided 8-1. Majority: Stone, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge. Dissenting: Roberts. https://supreme.justia.com/cases/federal/us/321/332/case.html


The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment.


But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages. Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices. The workman is free, if he values his own bargaining position more than that of the group, to vote against [union] representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. We cannot except individual contracts generally from the operation of collective ones because some may be more individually advantageous. Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices.


It also is urged that such individual contracts may embody matters that are not necessarily included within the statutory scope of collective bargaining, such as stock purchase, group insurance, hospitalization, or medical attention. We know of nothing to prevent the employee's, because he is an employee, making any contract provided it is not inconsistent with a collective agreement or does not amount to or result from or is not part of an unfair labor practice. But, in so doing, the employer may not incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in the matters covered by collective agreement.


[444] Article: "Found to Have Misbehaved With Pupils, but Still Teaching." By David W. Chen and Patrick Mcgeehan. New York Times, April 5, 2012. http://www.nytimes.com/…


The New York City Education Department wanted to fire these teachers. But in these and 13 other cases in recent years in which teachers were accused of inappropriate behavior with students, the city was overruled by an arbitrator who, despite finding wrongdoing, opted for a milder penalty like a fine, a suspension or a formal reprimand. …


As a result, 14 of those 16 teachers are still teaching and in contact with students, on either a daily or occasional basis. The other two were removed from their positions within the last month when new allegations of misbehavior surfaced against them, according to the Education Department. …


But to union officials, the right to an impartial hearing is sacrosanct, to protect teachers from losing their livelihoods because a principal or a student might have an ax to grind.


[445] Article: "N.Y.C. has about 700 teachers on paid leave in 'rubber rooms'." Associated Press, July 14, 2009. http://www.nj.com/…


Hundreds of public school teachers in New York accused of offenses ranging from insubordination to sexual misconduct, have been banished to adult detention centers known as rubber rooms, where the city can keep an eye on them, paying them their full salaries of $70,000 or $80,000 a year to essentially do nothing. …


Because their union contract makes it extremely difficult to fire them, the teachers have been banished by the school system to its "rubber rooms" -- off-campus office space where they wait months, even years, for their disciplinary hearings.


[446] Article: "How Florida's rogue officers remain on the job." By Anthony Cormier & Matthew Doig. Herald-Tribune, December 4, 2011. http://www.heraldtribune.com/…


Thousands of Florida officers remain on the job despite arrests or evidence implicating them in crimes that could have landed them in prison, a Herald-Tribune investigation has found.


Even those officers with multiple offenses have been given chance after chance through a disciplinary system that has been reshaped in their favor by the state's politically influential police unions.


[447] Textbook: The American Experiment: A History of the United States, Volume 2: Since 1865 (Third edition). By Steven M. Gillon and Cathy D. Matson. Wadsworth, Cengage Learning, 2013.


Pages 729-730:


Perhaps no group benefitted more from the New Deal than organized labor, which made tremendous gains during the depression decade. Union membership jumped from 3.6 million in 1930 to nearly 10.5 million in 1941. … The number of workers involved in walkouts rose from 324,201 in 1932 to 1.6 million in 1933. In 1934, working-class militancy reached new heights as violent industrial conflicts paralyzed cities in Ohio, California, and Minnesota. The strikes spurred increases in membership. …


… The New Deal's inclusions of Section 7(a) in the National Labor Recovery Act and the 1935 Wagner Act opened the doorway to union membership by guaranteeing workers the right to organize. …


… In 1937 a total of 4.7 million workers were involved in 4,740 strikes that affected all of the nation's key industries—steel, coal, auto, rubber, and electricity.


[448] Paper: "Binding Interest Arbitration in the Public Sector: Is It Constitutional?" William & Mary Law Review, 1977. Pages 787-821. http://scholarship.law.wm.edu/…


Pages 787-788:


Strikes by firemen, policemen, and other public employees in New York State in 1975 increased 100 percent in one year; the number of public employees involved in these work stoppages swelled 1800 percent.1 Similar illegal2 behavior, resulting in disruption of public services, is increasing rapidly throughout the United States.3 In an effort to reverse the trend of work stoppages following deadlocked negotiations,4 at least thirty-four states5 and a number of local governments6 have enacted binding interest arbitration statutes, giving a neutral arbitrator power to settle unresolved public sector labor disputes arising during the negotiation of the terms of a collective bargaining agreement. An arbitrator's decision is final and binding on both the public employer and the public employee. In theory, public employees will be pacified by turning disputed matters, such as wages, over to an impartial arbitrator, who can make a more rational finding than can an intractable public employer, cautious about spending the taxpayer's money.7


In reality, however, public employee unrest continues.8


1. (1976) GOV'T EMPL. REL. REP. (BNA) No. 670 D-3, citing New York Public Employment Relations Board 1975 Annual Report. In 1974 there were 16 strikes involving 4,100 public employees; in 1975 there were 32 strikes involving 77,745 public employees. Id.


2. Alaska, Hawaii, Minnesota, Montana, Oregon, Pennsylvania, and Vermont permit some public employees to strike under specified circumstances. …


3. (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


4. McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 COLUM. L. REV. 1192, 1192 (1972).


5. The following 34 states have enacted 50 binding interest arbitration statutes covering some or all public employees: …


6. See, e.g., SAN FRANCISCO, CAL., ADMIN. CODE, art. XI.A, § 16.216 (1974), reprinted in [1974 Reference File - 811 Gov'T EMPL. REL. REP. (BNA) 51:1437 (local); NEW YORK CITY, N.Y., ADMIN. CODE ch. 54, § 1173-8.0 (1972), reprinted in [1972 Reference File - 40] GOV'T EMPL. REL. REP. (BNA) 51:4167 (local).


7. See Barnum, From Private to Public: Labor Relations in Urban Transit, 25 INDus. & LAB. REL. REV. 95, 111 (1971).


8. See (1976) GOV'T EMPL. REL. REP. (BNA) No. 676, F-1-7, quoting Public Service Research Council, Public Sector Bargaining and Strikes (2d ed. Aug. 1, 1976).


[449] News release: "Union Members Summary." U.S. Department of Labor, Bureau of Labor Statistics, January 24, 2014. January 24, 2014


Page 1: "Public-sector workers had a union membership rate (35.3 percent) more than five times higher than that of private-sector workers (6.7 percent)."


[450] Report: "Selected Characteristics of Private and Public Sector Workers." By Gerald Mayer. Congressional Research Service, March 21, 2014. http://fas.org/sgp/crs/misc/R41897.pdf


Summary:


Among workers ages 18 to 64 who work full-time, differences in characteristics that may affect the relative pay and benefits of private and public sector workers include the following:


Age. Reflecting the aging of the U.S. labor force, workers in both the private and public sectors have become older. Nevertheless, employees in the public sector are older than private sector workers. In 2013, 51.7% of public sector workers were between the ages of 45 and 64, compared to 42.4% of full-time private sector workers. Federal workers are older than employees of state and local governments. In 2013, 56.7% of federal workers were between the ages of 45 and 64, compared to 49.7% of state employees and 52.1% of employees of local governments. Workers who have more years of work experience generally earn more than workers with less experience.


Gender. Reflecting the increased participation of women in the labor force, the share of jobs held by women has increased in both the private and public sectors. In 2013, women held almost three-fifths (57.7%) of full-time jobs in state and local governments. By contrast, women held approximately two-fifths of fulltime jobs in the federal government and in the private sector (42.2% and 41.7%, respectively).


Education. On average, public sector employees have more years of education than private sector workers. In 2013, 53.6% of workers in the public sector had a bachelor's, advanced, or professional degree, compared to 34.9% of private sector workers. Generally, workers with more years of education earn more than workers with less years of education.


Occupation. A larger share of public sector than private sector workers are employed in "management, professional, and related occupations." In 2013, 56.2% of public sector workers and 37.8% of private sector workers were employed in these occupations. In part, more public sector workers were employed in these occupations because 25.7% of all public sector workers were employed in "education, training, and library" occupations, compared to 2.3% of all private sector workers. Workers in management and professional occupations generally earn more than workers in other occupations. However, comparisons of the compensation of private and public sector workers that use broad occupational categories may miss differences between detailed occupations. Many detailed occupations are concentrated in either the private or public sectors. Nevertheless, many detailed occupations may require similar skills.


Union coverage. Although the number of workers covered by a collective bargaining agreement is greater in the private sector than in the public sector, the percentage of workers covered by a collective bargaining agreement is greater in the public sector than in the private sector.


Metropolitan area. Private sector workers are more likely than federal workers to live in major metropolitan areas (i.e., areas with 5 million or more people).


[451] Paper: "What Effect Do Unions Have on Wages Now and Would Freeman and Medoff Be Surprised?" By David G. Blanchflower and Alex Bryson. Journal of Labor Research, Summer 2004. http://www.dartmouth.edu/~blnchflr/papers/what do unions do.pdf


Page 383: "Richard Freeman and James Medoff's (F&M) pathbreaking 1984 book What Do Unions Do? has had an enormous impact. … It received rave reviews at the time it was written and unlike most books has withstood the test of time. It is certainly the most famous book in labor economics and industrial relations."


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There Is Big Variation in Industry-Level Union Wage Premia. F&M also found wide variation in industry-level premiums and might have expected this to persist because unions' ability to push for a premium, and employers' ability to pay, is determined by industry-specific factors (such as union organization and the availability of nonunion labor, regulatory regimes, bargaining, and product market rents).


[452] Paper: "Wage Effects of Increased Union Coverage: Methodological Considerations and New Evidence." By Dale L. Belman and Paula B. Voos. Industrial and Labor Relations Review, January 1993.