Labor Law

I. Coverage and Organization Under the NLRA

A. Employees Covered Under the NLRA

1. Sec 2. Employee shall include any employee...but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual employed as an independent contractor or supervisor.

2. Job applicants are treated as employees when considering discrimination in regard to hire.

a) NLRB v. Town & Country - The Court upheld a finding of an unfair labor practice when an employer refused to interview 10 of 11 union applicants.

3. Professionals

a) A professional employee means any employee engaged in work predominantly intellectual and varied…involving the consistent exercise of…judgment in its performance; the result cannot be standardized; requiring knowledge of an advanced type

4. Inclusions in the NLRA will be broadly construed. However, the exclusion from the NLRA will be narrowly construed.

B. Individuals Not Covered Under the NLRA

1. Independent Contractors

a) The Control Test is applied

(1) Nature and degree of control retained by management over manner and means of work;

(2) Who supplies the instrumentalities, tools and workplace;

(3) The skill required;

(4) The length of employment;

(5) Degree to which worker's service are integral to the company's operations;

(6) Whether or not the worker is engaged in a distinct business or occupation;

(7) Whether worker provides services to other companies;

(8) The degree to which management supervises the worker;

(9) The method of payment whether by the time worked or the job;

(10) Parties subjective understanding

2. Supervisors

a) Any individual having authority to:

(1) hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline other employees, responsibly to direct them, or responsibly to direct them;

(2) or effectively to recommend such action;

(3) in the interest of the employer;

(4) and is not of a merely routine or clerical nature, but requires the use of independent judgment.

NLRB v. Kentucky River - The Court held that nurses, who direct other employees in their work activities, are exercising independent judgment and should be treated as supervisors.

NLRB v. Croft Metals - The Court held that "lead persons" who worked along sdie their crew, did not determine hiring or discipline, and were unable to assign employees to different units or shifts were not supervisors under the Act.

b) To be a supervisor you have to perform supervisor functions for a regular and substantive amount of time.

3. Domestic Servants

4. Agricultural Workers

5. Parents/Spouses

6. Managers

a) People who develop the policy within the company

b) Managers formulate and implement management policy of a non-supervisory sort

7. Confidential Employees

a) Employees who act in a confidential capacity to persons who formulate and implement management's labor relations policies

b) The confidential information must be labor-related (who gets paid what and who has been charged with sexual harassment)

C. Creating and Challenging Bargaining Units

1. Determining Bargaining Units

a) The Board considers five factors to determine the appropriateness of the unit:

(1) whether the employees in the unit have a sufficient "community of interest";

Wages and Benefits

The more that the unit shares the same wages and benefits, the more likely it is that the unit will be deemed appropriate.

Centralized determination of labor policies

Common Supervision

Similarity in work performed

Similarity in training and skills

Frequency of contact between employees

Geographic proximity

Bargaining history

Integration of production processes

Employees' desires

(2) the scope of the union organizing campaign;

(3) the desire of the employees;

(4) the bargaining history, if any, between the parties; and

(5) the employer's organizational structure

b) Globe Doctrine

(1) Used to ascertain employee preferences on the unit issue when (1) a union is attempting to organize a large group of employees, but a subset of employees within the larger group would constitute an equally appropriate bargaining unit, or (2) one union is attempting to organize a large group of employees, and a rival union is attempting to organize a subset of employees within the larger group.

Members of the smaller unit (the Globed unit) elect whether they desire (1) representation in the large unit, (2) representation in the small unit, or (3) no union.

Members of the larger unit elect whether they desire (1) representation in the large unit, or (2) no union.

(2) If a majority of the small unit elects the small unit, then the votes for the large unit are tallied separately.

(3) If the employees do not elect the small unit, then the votes are added to the tally in the large unit election.

c) Leedom v. Kyne - The Board shall not decide that any unit is appropriate, if such unit includes both professional employees and non-professionals, unless a majority of professional employees vote for inclusion in the unit.

(1) A Board order in certification proceedings is not a final order and is not subject to judicial review.

2. Multi-Employer Bargaining Units

a) Must have employer and union consent

(1) Once consent is given, an employer may not walk away and terminate the bargaining

Exceptions include financial emergency

b) Joint Employees

(1) A person is jointly employed if the employer shares or co-determines the terms and conditions of employment.

Look at hire/fire, wages, and conditions to determine whether the employees are jointly employed

(2) Bargaining between the joint employees and the temp agency with the joint employer is ok because it is considered one unit.

NLRB v. HS Care - The Court held that N&W temp careworkers, whose wages and benefits were jointly determined, but supervision and assignments were determined by the Oakwood; were jointly employed and could not be combined in a bargaining unit with Oakwood employees.

(3) Regular employees and temp employees working within the same shop

Creates two different bargaining units (primary employee and temp employee)

You still have to find a community of interest

D. Organizing Campaigns

1. Non-Election Certification Campaigns

a) A union's request for a card-check or neutrality agreement is not by itself a demand for recognition and does not trigger an employer's right to demand a representation election.

b) When a union is certified through an election, an election bar is implemented and decertification elections are barred for at least one year.

c) In the case of a card-check agreement, the union must show, through signed cards, that a majority of employees support the union. The cards will then be checked by a neutral third party (an abitrator) to verify the majority status.

(1) If there is a card-check recognition, the election bar does not apply, unless:

(1) Employees in the bargaining unit are notified, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union; and

(2) 45 days pas from the date of notice without the filing of a valid petition.

2. The Principle of Exclusivity

a) The Union is the sole representative of the bargaining unit.

b) J.I. Case v. NLRB - JI Case refused to bargain with the certified union on the grounds of prior contracts with the employees regarding employment benefits. The Court held the contracts must yield to the NLRB and JI Case must bargain.

c) Emporium Capwell v. Western Addition - Employees claimed racial discrimination and sought to negotiate with the company president. When the president refused, the employees went on strike and were discharged. The Sup Ct upheld the discharges on the grounds that employees were attempting to circumvent their collective bargain representatives.

3. Union Actions During Organizing

a) Solicitation on Company Property

(1) Access of Employees

Rule prohibiting solicitation during working hours is presumptively valid.

Rule prohibiting solicitation during non-working hours is presumptively invalid.

The Court will uphold a prohibition if the prohibition is necessary to protect production, discipline, or safety.

Prohibitions that are based in the workplace are presumptively valid, but when not in the workplace, they are presumptively invalid.

Retail: Bans on solicitation in selling areas are presumptively valid.

Restaurants: In front of customers is presumptively valid.

Hospitals: In front of patients is presumptively valid.

Employers can extend leaflet solicitation bans to non-work places due to their disruptive nature.

(2) In places of quasi-public nature, employers have less of an expectation of union exclusion.

To have discrimination against a union, you must have comparable conduct (think girl scouts v. union organizers)

Courts will look at the level of disruption that each solicitation causes and will compare the level of disruption to determine comparable conduct.

Isolated instances of beneficent acts - Courts will allow charities to conduct their activities on employer's property without viewing it as discrimination.

If the solicitation allowed is related to a legitimate business interest (a medical textbook vendor to sell medical textbooks to doctors).

(3) Lechmere Balancing Test - Where 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, employer's property rights may be required to yield to the extent needed to permit communication of information on the right to organize.

b) Prohibition Against Secondary Activity

(1) Sec 8(b)(4): It shall be an unfair labor practice: (i) to induce or encourage an employee to strike or refuse to handle goods; or (ii) to threaten, coerce, or restrain any person, where in either case an object is (A) force a secondary employer to enter into a hot cargo agreement; (B) force a person/company to cease doing business with the primary company

If a union is in violation, the business may sue the union directly, the Board may fine the union, and the business may seek an injunction from the district court.

Primary employer - Look to the employer with whom the union has the main dispute

Secondary employer - Innocent, detached, third party employer. Victim of the prohibited pressure

Royal Typewriter Ally Exception: Where a company acts as an ally because they knowingly do work which would otherwise be done by the striking employees of the primary employer, and where this work is paid for by the primary employer pursuant to an arrangement devised and originated by him to enable him to meet his contractual obligations, there is no secondary activity when the employees picket the second company.

If the two companies are a single employer, single entity, or a straight-line employer, then picketing is not a unfair labor practice.

DeBartolo Persuasion Exception: Where individuals disperse handbills encouraging individuals not to frequent a store, and it is not accompanied by picketing, there is no secondary activity.

Publicity, other than picketing

Truthful

Advise the public

That secondary R carries product produced by primary R

Tree Fruits Product Picketing Exception: Product picket is not a secondary activity prohibited under the act, unless:

the secondary employer will be threatened with ruin or substantial financial loss, then a picket may be barred.

4. Employer Actions During Organizing

a) Polling Employees

(1) The Test - All of the following must be met: (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.

b) Promise of Benefits

(1) If the benefits were conferred unconditionally and permanently, the conferring of benefits does not violate the NLRA.

c) Plant Closure

(1) If the persons exercising control over a plant that is being closed for antiunion reasons:

(1) have an interest in another business, whether or not affiliated with or engaged in the same line of commercial activity as the closed plant, of sufficient substantiality to give promise of their reaping a benefit from the discouragement of unionization in that business;

(2) act to close their plant with the purpose of producing such a result; and

(3) occupy a relationship to the other business which makes it realistically foreseeable that its employees will fear that such business will also be closed down if they persist in organizational activities, we think that an unfair labor practice has been made out.

d) Captive Audience Speeches

(1) Peerless Plywood - R and U are prohibited from making election speeches on company time to massed assemblies of employees within 24hrs of the election.

(2) Livingston Shirt - In the absence of either an unlawful broad no-solicitation rule (prohibiting 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 may make a pre-election speech on company time and premises, and may deny a union the opportunity to reply.

e) Employer Predictions and Bargaining Orders

(1) R is free to communicate his views about unionism, so long as the communications do not contain a threat of reprisal or force or promise of benefit.

(2) An employer is free only to tell what he reasonably believes will be the likely economic consequences of unionization, based on objective facts that are outside his control.

(3) NLRB v. Gissel Packing - The Court held that statements saying the union was strike happy and could lead to a closing of the plant was coercive and constituted an ULP.

(4) Gissel Packing Remedy

The Board may order the violating company to bargain with the union

Must have unfair labor practice that interferes with an election

Must show that the union had a clear majority

5. Withdrawal of Recognition

a) An employer may (1) conduct an internal poll of employee support for the union; (2) request a formal, Board-supervised election, to withdraw recognition; or (3) refuse to bargain.

(1) For an employer to file a decertification petition or to conduct an internal poll, the employer must have a good faith reasonable doubt that the union is no longer supported by the majority of employees

An employer need not believe that the union lost support, they only need to have a reasonable good faith doubt as to the union's majority support

(2) For an employer to refuse to bargain, there must be a factual certainty that the employer has lost majority support

Statements by an employee

Signed cards

Union dues dropping

A strike called where few members participate

Significant employee turnover (strike breakers dominating the employment)

6. Employer Domination/Company Unions

a) The entity is a labor organization if (1) employees participate, (2) the organization exists, at least in part, for the purpose of dealing with employers, and (3) these dealings concern "conditions of work," grievances, labor disputes, wages, rates of pay, or hours of employment.

(1) Dealing concerns the entity proposing changes to the employer that are involved with collective bargaining.

(2) Brainstorming sessions are not considered dealings with the employer.

b) NLRA 8(a)(2) - It shall be an Unfair Labor Practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it

II. Negotiating CBAs

A. Mandatory Subjects of Bargaining

1. NLRA 8(d) - 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…But such obligation does not compel either party to agree to a proposal or require the making of a concession…

2. When dealing with a mandatory subject (even management functions clauses) a party may insist on their terms to the point of impasse.

a) A party may not insist on bargaining to impasse on permissive subjects.

b) Mandatory bargaining subjects deal with wages, hours, and other terms and conditions of employment.

(1) They do not include a pre-strike ballot clause, or a clause recognizing an uncertified local union affiliate.

B. Unilateral Changes

1. Partial Closings

a) First National Maintenance - Bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective bargaining process, outweighs the burden placed on the conduct of the business.

(1) R does not have to bargain if it may face significant tax securities consequences that hinge on confidentiality, the timing of a plant closing, or reorganization of corporate structure.

(2) In First National the Court held the termination of a maintenance contract and the firing of employees performing maintenance at a nursing home was not subject to bargaining because it was over a management fee.

2. Relocations

a) Dubuque Packing - In cases where R relocates work to another location and the work does not vary significantly, R must bargain to impasse or show that the action was motivated (directly/indirectly) by something other than labor costs or that negotiations would be futile or impossible.

(1) In Dubuque Packing, the Court held R's decision to move its operations after U refused a wage-freeze plan was a failure to bargain.

3. Subcontracting

a) Fibreboard - Subcontracting out work is a mandatory bargaining subject if there is not a basic change in the business (relocating and new or changing product lines).

(1) Land Air Delivery - R must bargain over mid-strike subcontracting because permanent subcontracting would extinguish bargaining unit work.

(2) International Paper - Subcontracting during a lockout was inherently destructive under 8(a)(3) and doing so before bargaining to impasse derivatively violates 8(a)(5).

(3) In Regal Cinemas, the Court held R's termination of projectionist and the assigning of duties was subject bargaining under Fibreboard.

C. Providing Information During Bargaining

1. Truitt Manufacturing - If an argument is important enough to present in give and take bargaining, it is important enough to require some sort of proof of its accuracy.

a) In Truitt, R claimed that he could not allow a wage increase over 2.5 cents per hour, otherwise he would go out of business. He refused U's request to look at R's books and the Court determined this was a failure to bargain in good faith.

D. Good Faith Bargaining

1. Absence of concessions does not prove bad faith, but the presence of concessions raise a strong inference of good faith.

2. General Electric - A pattern of conduct by which one party make it virtually impossible for him to respond to the other--knowing that he is doing so deliberately--should be condemned by the same rationale that prohibits "going through the motions" with a "predetermined resolve not to budge from an initial position."

a) In General Electric, the Court held GE's refusal to negotiate over its initial offer, it's statement to that fact, and it's attempts to evade negotiations constituted a "take-it-or-leave-it" stance and a refusal to bargain.

E. Implementing Terms

1. Employers can implement terms "reasonably contemplated" even if they "warn" a union that they will implement harsher terms than those offered at the table

2. The NLRB states that unilateral terms cannot be implemented until there is an impasse on all mandatory subjects of bargaining.

a) Bargaining History

Courts will look at whether the bargaining is over a new contract or a renewal of a contract.

b) Good Faith During Negotiations

If there has been good faith negotiations, it will point to the fact that there is an actual impasse.

c) Length of Negotiations

If the negotiations have been going on for a substantial amount of time, a court will likely determine there is an impasse.

d) Importance of Disputed Issues

The more minor the issue, the less likely there is an impasse.

e) Subjective Understanding of Parties as to the State of Negotiations

3. An employer can implement if a union commits an unfair labor practice.

4. If an employer is facing closure of the business or another emergency, then an employer may implement.

5. McClatchy Newspapers - R may not unilaterally implement a discretionary wage system that has no objective procedures or criteria for determining merit and provided for no input from the union.

F. Union Misconduct During Bargaining

1. Insurance Agents - Employees conducting a partial strike while the union bargains with the employer is not grounds for a charge of failure to bargain.

G. Rules on Mandatory/Permissive Distinction

1. Mandatory Subjects

a) May Insist to the Point of Impasse

b) May NOT Refuse to Discuss

c) May NOT Unilaterally Implement, Pre-Impasse

d) Creates UnfairLaborPractice strikes w/ right to return

2. Permissive Subjects

a) May Refuse to Discuss

b) May NOT Insist to the Point of Impasse

c) May Unilaterally Implement, Pre Impasse

d) Does NOT Crate a ULP Strike w/ Right to Return

III. Economic Weapons

A. Protected Concerted Activity in Unorganized Workplaces

1. Protected Concerted Activity

a) Concerted activity requires two or more parties engaged in acts for the purpose of other mutual aid or protection.

(1) Mutual Aid consists of improving the actual working conditions of employees.

(2) If an employee is part of a union and has a CBA, the employee, alone, may engage in protected activity if protesting the violation of a provision in the CBA.

(3) A person, alone, may be engaged in concerted activity if they are attempting to induce other workers to engage in similar activity.

b) Washington Aluminum - The Court held the workers leaving as a group in protest to the cold conditions was protected activity and the workers could not be fired.

2. Employees' Right to Representation

a) Weingarten - In a union setting, a person is entitled to a union representative when being interviewed as a redress to the perceived imbalance of economic power between labor and management.

b) IBM Corp - Non-union workers are not entitled to representation given the lack of skill, possibly compromising information, and lack of ability to level the playing field, of a co-employee versus a union representative.

3. Unprotected Walkouts

a) When a group of non-union workers engage in concerted activity, they are protected.

b) When a group of non-union workers conduct a partial strike, it is not protected activity and the employer is permitted to fire the members of the group.

c) Vencare - The Court ruled the employer firing workers for refusing to see patients, but continuing to do paperwork was permitted because the refusal to see patients in protest of reduced wages was a partial strike.

B. Union Conduct; Unprotected Disloyal Behavior

1. Jefferson Standard - Activity (including handbilling and picketing) that is unrelated to a labor dispute but seeks to discredit an employer is not protected.

2. Activity which is in violation of the law or seeks to implement a result in violation of the law is unprotected.

a) A strike by seamen in violation of federal laws against mutiny.

b) A strike to force a wage increase in violation of federal wage controls.

3. Strikes in breach of a clear and unmistakable negotiated no-strike provision is unprotected.

4. Intermittent and unannounced work stoppages.

5. Walking out at a time and in a manner that poses safety hazards or endangers the employer's property.

a) Security guards abandoning work at a dangerous public-housing complex.

6. Picketing for illegal objectives

a) Picketing to force the employer to bargain with a group other than the certified bargaining representative.

C. Employer Conduct

1. Sec 8(a)(3) - It shall be an unfair labor practice for an employer--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

2. Discharging Employees Based on Union Affiliation

a) Motivating Factor 8(a)(3) - Burden Always on GenC

(1) Burden on GenC to prove employment action motivated by anti-U animus

The closer the time between the activity and action is, the more likely anti-U is the motivating factor

Also look for comparative evidence that indicates anti-U motivation (Are other employees in the same situation?)

b) Affirmative Defense - Burden on R

(1) R must prove that even if anti-U animus was a motivating factor, R would have taken action anyway for U-neutral reasons

3. Strike Replacements

a) Mackay Radio - R may hire permanent strike replacements, but when a strike is over, R may not discriminate in rehiring strikers based on union activity.

b) The right for stikers to return is based on who they are replaced by.

(1) In cases of shutdowns, strikers have a right to get their jobs back. This also applies to temporary strike replacements. In cases of lockouts, the employer cannot hire permanent replacement workers.

(2) In cases, where the employer hires permanent replacements, the strikers have no right to their jobs which the replacements have filled.

(3) Economic strikers may become unfair labor practice strikers, if in the midst of a strike, the employer commits and unfair labor practice and causes the strike to go on longer than it should.

4. Extra Benefits to Strike Replacements

a) Erie Resistor - R is not permitted to extend benefits to strike replacements that create a lasting cleavage after the strike has ended, such as 20yr super seniority for all who cross the picket line, but not for strikers who remain on strike.

5. Lockout

a) Offensive lockouts - intended to exert pressure on the union at the bargaining table

b) Defensive lockouts - used in fear of an imminent strike, as a way for the employer to limit the effect of a strike, and subsequent disruption, of a union strike

c) American Ship Building - R is permitted to lock his employees out to exert pressure on the union and as long as R continues to bargain, there is no ULP.

d) Lane - R may lockout employees prior to impasse as long as good faith bargaining continues.

6. Determining Intent

a) Great Dane Trailers - Inherently Destructive Activity - If R's discriminatory conduct was inherently destructive of important employee rights, no proof of antiunion motivation is needed and a ULP can be found even if R introduces evidence of business considerations as its motivation.

(1) To determine whether an act is inherently destructive you must determine if:

The act causes a cleavage between employees that last beyond the return to employment

The act was inherently destructive to the union, such that it discredits the union in the eyes of the employees

b) Great Dane Trailers - Comparatively Slight Activity - If the effect of R's discriminatory conduct on employee rights is comparatively slight, an antiunion motivation must be proved if R comes forward with evidence of a legitimate and substantial business justification for the conduct.

7. Lockout in Retaliation for Unlawful Union Pressure

a) Central Illinois - R is permitted to employ a lockout as long as the goal of the lockout is to exert pressure at the bargaining table.

b) The Board is prohibited from inferring antiunion motivation solely from the application of economic pressure during the bargaining dispute.

8. Subcontracting During Lawful Lockout

a) International Paper - R is permitted to subcontract out work done by employees during a lawful lockout if it has a business justification because subcontracting has a slight effect on employee rights.

D. Procedures and Remedies for ULP

1. ULP Proceedings

a) Board orders are not self-enforcing and a party that refuses to comply is subject to no sanctions until the appellate court enforces the order.

2. Remedies

a) Employees Engaged in Illegal Sit-ins

(1) Fansteel - Board can not reinstate the employees who engaged in the sit-down strike because they conducted illegal activity which resulted in illegal possession of the employer's buildings.

b) Undocumented Workers

(1) Hoffman Plastics - Board can not reinstate and give back pay to an employee that violates a law, like in this case, the Immigration Reform and Control Act.

c) Bad Faith Bargaining

(1) H.K. Porter - The Board has no power to compel employers to concede to terms during negotiations.

(2) Ex-Cell-O - The Board may not impose retroactive wage increases in failure to bargain cases, because it acts as punitive damages which the NLRA does not allow the Board to impose.

d) ULP Remedies

(1) ULP: Wrongful discharge/discipline

Remedy: reinstatement and/or back pay

(2) ULP: Employer domination

Remedy: R must stop recognizing the company U

(3) ULP: Bad Faith Bargaining

Remedy:

Recognize the certified U

Bargain in good faith

Gissel: Bargain with U that never won election

(4) Any ULP

Remedy:

Cease and desist (Stop ULP)

Other injunctive relief

Post promise to comply

3. Employee Free Choice Act

a) EFCA Lite

(1) No card check

(2) Expedited elections (10-21 days after filing petition)

(3) U gets access to Es on company property if company gives captive audience speech

(4) Mandatory final arbitration of interest on first time contracts

(5) Penalties for violations

b) EFCA

(1) Card check is a way of U gaining recognition without resorting to card check agreements with R

(2) Allows the Board to impose civil penalties for willful or repeat ULPs

(3) After recognition the parties must bargain and if within the first 90 days, there is no agreement, one of the parties may request a mediator and if after 30 days with the mediator and no agreement, the mediator may refer the dispute to arbitration

IV. Enforcing the CBA

A. Enforcing the Agreement to Arbitrate

1. American Manufacturing - It is not a function of the Court to weigh the merits of the case in situations where arbitration is required in the CBA. The Court is only to determine whether a company or individual has agreed to arbitrate on the matter.

2. Warrior and Gulf - An order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Any doubts should be resolved in favor of coverage.

3. For arbitration, there must be complaint first.

a) Often the CBA will determine how the arbitrator is chosen.

(1) Either through agreement on a single individual or the selection from an agreed upon list of arbitrators.

b) Individuals must attend and submit to arbitration when included in the contract.

(1) If a party refuses to arbitrate, then the other party may sue in federal court.

The common Sec 301 suits are for a failure to arbitrate.

4. Procedural arbitration determines whether the employee followed the proper steps to reach arbitration. Disputes regarding arbitration procedures are to be determined by the arbitrator.

5. Substantive arbitration determines whether the claim requires arbitration, as stated in the contract. Disputes of a substantive nature are to be decided by the courts with any doubts resulting in favor of arbitration.

B. Judicial Review of Arbitration

1. Effectuating the Parties' Intent

a) Enterprise Wheel - An arbitration award must draw its essence from the collective bargaining agreement and that an arbitrator must not sit to dispense his own brand of industrial justice.

b) Enterprise Wheel - A mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award.

2. Erroneous Factual Findings and Remand

a) Garvey - In cases where the arbitrator is determining credibility and performing fact finding, the Court will be unlikely to deem the award out of line.

b) Garvey - Serious factual errors are not reversible. When the arbitration fails, the Court's only remedy is to order new arbitration.

3. Public Policy Considerations

a) Eastern Associated Coal - When enforcement of an arbitration proceeding is contrary to an explicit public policy that is well-defined and dominant, enforcement will be denied.

b) Eastern Associated Coal - The Court found the arbitrator's decision to reinstate a truck driver that twice tested positive for marijuana was not contrary to public policy (DOT regulations prohibiting use of illegal substances while driving heavy machinery) because the employer could place the violating employee in light-duty or non-driving positions until completion of a substance abuse program.

C. Arbitrating Statutory Claims

1. 14 Penn Plaza - A CBA that clearly and unmistakably requires union members to arbitrate statutory discrimination claims is enforceable as a matter of law.

D. No-Strike Obligations

1. Boys Market Injunction

a) Underlying dispute is arbitrable

b) Strike arises out of underlying dispute

c) Strike is violation of no-strike clause

d) Hardships tip in employers' favor

(1) Irreparable harm

(2) Adequacy of monetary damages

2. Reverse Boys Market Injunction (sought by union to stop employer)

a) Underlying dispute is arbitrable

b) Allowing employer to go forward would frustrate the arbitration process (union must prove)

c) Equitable considerations

(1) Union success on the merits of the arbitration

(2) Hardship tip in union's favor

Irreparable harm

Adequacy of monetary damages

E. - Determining Arbitrability

1. First, was the dispute subject to arbitration?

a) Did the parties agree to arbitrate?

b) Is the claim arbitrable?

2. Second, is the essence of A's decision drawn from the contract?

a) Does A dispense his/her own brand of industrial justice?

b) Is a arguably construing the CBA and acting within A's authority?

3. Third, does A's decision violate an explicit, well defined, dominant public policy ascertainable in the law?

a) Cannot be based on general public interest.

b) The public policy must be explicit and must be well defined and dominant.

V. Union Membership, Fair Representation, Discipline, and Dues

A. Duty of Fair Representation in Contract Negotiations

1. Air Line Pilots Association - U's actions must be in good faith and must be reasonable to satisfy the DFR, but a bad settlement/negotiation does not mean that U was irrational.

2. International Brotherhood of Boilermakers - U breaches their DFR by denying nonmembers the right to vote on work and holiday schedule issues in union referenda (when the decision is binding on the negotiators). However, ratification votes are not subject to DFR considerations.

B. DFR in Grievance Adjustment

1. Hines - Enforcement of the finality provision where an arbitrator has erred is conditioned upon U having satisfied its statutory duty to fairly represent the employee in connection with the arbitration proceedings.

2. Hines - U does not breach its duty of fair representation merely because it settles a grievance short of arbitration.

3. Hines - It does not matter if U subverts the arbitration process by refusing to proceed or follows the arbitration trail to the end, but in doing so subverts the arbitration process by failing to fairly represent the employee; in neither case does the employee receive fair representation.

4. Unexplained late filing of a grievance may violate the DFR (2 months late).

5. Failure to assert a claim, defense, or to notify the employer of information important to the arbitration is a violation of the DFR.

C. Obligation to Maintain Membership

1. Sec 8(a)(3) - That no employer shall justify any discrimination against an employee for non-membership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

2. General Motors - In states where agency shops are not prohibited, R is required to bargain over such a term (mandatory subject).

D. Use of Union Dues

1. Beck - For new hires, they must receive notice that they are not required to join the union (but only to pay dues) and to object to expenditures that are not germane.

a) When expenditures are objected to, the union must stop collecting non-germane dues, provide an employee with an accounting, and provide the employee the right to object to the expenditures.

2. Beck - U may only charge and expend fees of financial core members that are germane to collective bargaining.

a) - Germane

(1) Negotiating the CBA

(2) Enforcing the CBA

(3) Adjusting grievances under the CBA

(4) Renting out venues for union functions

(5) Publishing union publications

(6) Litigating a case that ultimately benefits the union members

(7) Organizing workers, of other employers, that are performing the same work

(8) Building strike funds for the bargaining unit

(9) Costs in preparation of a strike (even if illegal)

b) - Non-Germane

(1) Supporting political candidates

(2) Recruiting members among workers outside the bargaining unit

(3) Litigation not involving the negotiation of agreements, settlement of grievances, or litigation related to general organizing efforts

(4) General public relations or lobbying efforts

3. California Saw - union must take reasonable steps to insure that all employees whom the union seeks to obligate to pay dues are given notice of their rights (placing a notice in the back of union publication is sufficient notice).

4. United Food and Commercial Workers - Organizing workers in the same industry (competing businesses) is germane to bargaining because it raises area wages in that industry.

E. Discipline by Union

1. Allis-Chalmers - Union can fine its members for crossing the picket line because the Landrum-Griffin Act intended to allow unions to pursue their own policies without interference from the NLRB.

VI. History of Labor Law and Future Possibilities

A. - Estreicher Proposal

1. Narrow definition of labor organization to allow for employee committees

2. Penalties for flagrant violations

3. Allow U access and overrule Lechmere

4. Allow Es to vote on final offer prior to strike

5. Force Rs to disclose economic data

6. Ban permanent replacements

7. Eliminate distinction between mandatory and permissive subjects

8. Do not allow unilateral withdrawal (only decertification election)