10 multiple choice law questions (questions in attached file) based on info that is in the other attached files.
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Section 8(b)(7)(C) of the LMRA :
Does not pertain to picketing for an object of “recognition”
Does not pertain to picketing for an object of “bargaining”.
Prescribes limitations only on picketing for an object of “recognition” or
“bargaining” or for an object of organization.
Prohibits a “currently certified” union from picketing for recognition or organization
of employees for whom it is certified.
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Question 23 pts
A jurisdictional dispute:
Must be resolved by the National Labor Relations Board (“NLRB”) in as much as
there is no other way for the parties to such dispute to voluntarily adjust their
dispute.
Will always be referred to the National Mediation Board for a final resolution.
Will always be referred to the Federal Mediation and Conciliation Service for a final
resolution.
Is a dispute between two unions as to which shall represent a group of employees in
collective bargaining or as to which union’s members shall perform a certain type of
work.
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Question 33 pts
The construction and application of the terms of the labor contract are never left to:
State and federal courts.
Privately selected arbitrators.
The NLRB.
The Knights of Labor.
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Question 43 pts
Once the parties execute a collective bargaining agreement:
The duty to bargain is discharged.
The parties are still obligated to bargain over mandatory mid-term contract
proposals.
There can be no modifications to the agreement absent the express approval of the
NLRB.
The agreement cannot even been modified through bankruptcy proceedings.
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Question 53 pts
During the term of a collective agreement the same conduct by an employer may give rise to
both unfair labor practice charges and an arbitrable grievance. When this happens, the
aggrieved union can process its dispute through:
Either the NLRB or the contractual grievance and arbitration process, but not both.
Both the NLRB or the contractual grievance and arbitration process.
A lawsuit brought in federal court pursuant to Section 301 of the Labor Management
Relations Act.
A lawsuit brought in federal court pursuant to Section 4 of the Norris-LaGuardia
Act.
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Question 63 pts
“Featherbedding” is the:
Is the name given to the act of a non-striking union member who passes through a
striking union’s picket line.
Lump-sum payment, generally computed on the basis of length of service, made by
an employer to a worker whose employment is terminated for causes beyond the
worker’s control, and which is in addition to any back wages or salary due to the
worker.
Term applied by unions to non-member employees who secure whatever benefits
derive from the union’s activities without paying union dues.
Name given to employee practices which create or spread employment by
unnecessarily maintaining or increasing the number of employees used, or the
amount of time consumed, to work on a particular job.
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Question 73 pts
A secondary boycott is:
Directed by a union against an employer with whom it has a primary dispute.
The application of economic pressure upon a person with whom the union has no
dispute regarding its own terms of employment in order to induce that person to
cease doing business with another employer with whom the union does have such a
dispute.
A work stoppage which lacks the approval of the national or international union and
usually violate either a collective bargaining agreement (“CBA”) or the union
constitution.
A strike in which the workers refuse to work but stay inside the employer’s premises.
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Question 8 3 pts
Section 8(e) of the Labor Act:
Excludes from its ban agreements by jobbers or manufacturers in the clothing
industry not to subcontract work to nonunion contractors.
Makes it unlawful for a construction employer to agree not to subcontract job-site
work to nonunion contractors.
Makes it unlawful for a union in the clothing industry to enter into an agreement not
to subcontract work to nonunion contractors.
Makes it illegal for a union to conduct successive surprise strikes by a union against
one after another of the various employers in an industry or in an employers’
association so that no employer knows which one will be “sawed off” next.
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Question 9 3 pts
Recognition picketing is picketing:
To persuade or coerce employees to join a union or to accept the union as bargaining
agent.
Directed by a union against an employer with whom it has a dispute, in order to
persuade or coerce that employer to stop doing business with, or to bring other
pressure against, another employer, with whom the union does not have a dispute.
To publicize either the existence of a labor dispute or information concerning the
dispute.
To persuade or coerce an employer to recognize a union as bargaining agent of his
employees.
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Question 10 3 pts
A hot cargo clause is a clause in union contracts:
Raising and lowering of wages according to changes in the cost-of-living index or
similar standard.
Not to call a strike during the term of a collective bargaining agreement.
Permitting employees to refuse to handle or work on goods shipped from a struck
plant or to perform services benefiting an employer listed on a union unfair list.
Prohibiting employees from handling goods over a certain temperature, most often
120 degrees Fahrenheit.
ProblemforDiscussion
The Office Workers Union is in the midst of negotiating a new agreement with
Digital Service Inc. (DSI). DSI has a workforce of some 60 employees, and is covered
by the National Labor Relations Act. Its office is on the fifteenth floor of a 60-story
building; two other business tenants occupy office space on that floor. DSI employees
are now on strike, and are picketing and leafletting at the main ground-floor entrance
to the office building. Obviously, most of the persons coming and going at that
entrance are doing business with companies other than DSI. Union representatives
wish to know whether they may station a small number of strikers, carrying signs
and handbills, on the fifteenth floor. What advice would you give the
Union? Compare Seattle-First Nat. Bank v. NLRB, 651 F.2d 1272 (9th Cir.
1980), with Silverman v. 40–41 Realty Assocs., 668 F.2d 678 (2d Cir. 1982).
1. 662
2.
III. The National Labor Relations Act
A.Organizational and Recognition Picketing i
Throughout the history of the labor movement, unions have often resorted to work stoppages
and picketing as a means of pressuring employees to join and employers to bargain. The strike by
the Baltimore unionists in Plant v. Woods, page 13 supra, was designed to secure a closed shop,
i.e., to induce all company employees to become union members, and to induce the employer to
hire only union members and to bargain exclusively with the Baltimore union. As did
Massachusetts in that case, many states at and after the turn of the century treated such
pressures as tortious and enjoinable; even after state courts came to allow peaceful picketing and
strikes for “justifiable” objectives, many treated the union’s quest for recognition as too indirectly
related to the betterment of wages and other working conditions.
This view was changing by the 1930s and 1940s, when more state courts came to endorse the
approach taken by Justice Holmes in the Plant case. An example is C.S. Smith Metropolitan
Market Co. v. Lyons, 16 Cal.2d 389, 106 P.2d 414 (1940). There, members of the Amalgamated
Meat Cutters Union picketed at the Long Beach stores of Smith Market. The union already had
negotiated closed-shop agreements with other Long Beach supermarkets and butcher shops;
Smith was non-union and—although it offered to pay the initiation fees of any employee who
joined the union—none wished to join. Smith paid its butchers more than union scale and had
hours of employment less than the union schedule elsewhere in Long Beach. The picketing
resulted in a loss of business and induced other companies and their employees to refrain from
selling or delivering merchandise. Although the state trial court enjoined the picketing, the
California Supreme Court reversed.
The court held that laborers—as much as businessmen—are free, in the absence of
legislation, “to inflict damage in the struggle of competition so long as they abstain from violence,
fraud or other unlawful conduct.” Work stoppages, picketing and boycotts may cause economic
loss, but they are lawful if “inflicted in pursuit of a legally justifiable object.” The court found
these principles based upon a “widespread belief in competition, free enterprise, and equality of
opportunity,” and it found in a number of California statutes protecting workers a recognition of
the “inequality of bargaining power between employer and employee.”
[C]ombination and organization are permissible on both sides, and the determination of
terms and conditions of employment is 663to be left to bargaining and competition by
these organizations in a free and unrestricted market.
* * * [T]he determinative issue is whether the workmen are demanding something
which is reasonably related to employment and to the purposes of collective bargaining.
More specifically, the propriety of lawful concerted action depends upon whether the
workmen have such an interest in the employment relationship that the attainment of
their object will benefit them directly or will enhance their bargaining power.
The members of a labor organization may have a substantial interest in the
employment relations of an employer although none of them is or ever has been employed
by him. The reason for this is that the employment relations of every employer affect the
working conditions and bargaining power of employees throughout the industry in which
he competes. Hence, where union and nonunion employees are engaged in a similar
occupation and their respective employers are engaged in trade competition one with
another, the efforts of the union to extend its membership to the employments in which
it has no foothold is not an unreasonable aim.
Modern industry is not organized on a single shop basis, and it is a logical corollary
of the collective bargaining principle that independent labor organizations should be
permitted to grow and extend their bargaining power beyond the single shop. The
market for a product may be so competitive that one producer cannot maintain higher
labor standards resulting in higher costs than those maintained by his nonunion
competitors.
Nor is the interest of the union in extending its organization any less substantial
where the labor standards of the nonunion shop are on an equality with those of its union
competitors. Under these circumstances it may reasonably be believed vital to union
interests to organize such a shop, for there can be no doubt that the receipt by other
workmen of equivalent benefits without suffering correlative union responsibility serves
to create intraunion unrest and disaffections.
The court concluded that “the members of the butchers’ union have a substantial interest in
the employment relations of the market company.” A number of the companies that had labor
agreements with the union had declined to adhere to union standards until competitors were
organized; and Smith employees worked on Sundays and nights, when unionized stores were
closed. “[I]t is clear that the continued operation of the [Smith] shops under nonunion conditions
had an immediate effect upon both the working conditions and bargaining power of all the union
butchers employed in Long Beach. The [union was], 664therefore, privileged to direct against the
market company any peaceful form of concerted activity within their control.”
Three judges filed a strong dissent. They regarded all workers as having the individual right
“to ally himself with a group of his own seeking, and to select a representative for negotiations
with his employer in whom he has faith and confidence. To have forced upon him membership in
an association to which he is antagonistic, and to have imposed upon him as a representative, an
agency which he does not desire, is so violative of his freedom of action and his liberty as an
individual as to need no apology for the defense of these rights.” The dissenters referred to the
recently enacted National Labor Relations Act (which covered Smith Market) and pointed out
that the statute forbade an employer’s interference with the union affiliations of its employees.
To permit the union to continue picketing would pressure the company to force its employees to
join the union or else to discharge them. “If the company refuses to accede to the demand of the
picketing union to violate the federal law it must suffer the loss of its business. If the company
violates that law, as demanded by the picketing union, it is punishable thereunder.” The picketing
was thus for an unlawful purpose and should be enjoined.
The opinions in Smith Metropolitan Market suggest the very elaborate set of interests of all
of the parties involved, some reinforcing and some conflicting. The employer seeks to avoid
interruption of its business and to maintain a union-free environment. The employees have an
interest in hearing the union’s message, but also in making an uncoerced decision regarding
unionization and in uninterrupted employment; some, of course, may support the union as a step
toward improved working conditions. The public has an interest in learning the facts of the labor
dispute, but also in the continued operation of the business. The picketing union seeks to secure
members and to achieve bargaining status; this enhances its power and prestige, improves its
financial base, and protects its negotiating gains at competing companies. It also has an interest
in communicating its protest and its objectives to company employees, to other companies doing
business with it, and to the public generally.
Is a common law court, without statutory guidance, able to “balance” or to establish priorities
among these interests, in order to decide whether to outlaw the picketing? Even after the
legislature speaks, it may be difficult to determine whether it has “intended” to forbid such
organizational or recognition picketing. Does the Wagner Act as originally written give greater
support to the union or to the employer in Smith Metropolitan Market? (Hindsight makes it clear
that because the picketing by the Meat Cutters Union was within the regulatory concerns of
Congress, the state labor laws of California should have been preempted and the case dismissed.
Although this would no doubt be the result today, preemption theory had not really begun to
develop as early 665as 1940, so that the court’s assertion of jurisdiction would not have been
regarded as unusual.)
The network of interests involved in a recognition dispute becomes even more elaborate when
there is a freely selected incumbent union on the scene, and an insurgent union is engaged in
recognition picketing. Does that enhance the likelihood of a state-court injunction (in 1940)? What
if Smith Market had a labor agreement with the Retail Clerks Union, and the Meat Cutters were
picketing for the purpose of forcing the company to withdraw recognition, breach the contract,
and recognize the Meat Cutters? (At first blush, the answer might seem clear. But what if it has
been several years since the Retail Clerks Union was designated the bargaining representative?
What if the Meat Cutters claim to have majority support? What if it claims that the Retail Clerks
were an illegally supported union? What if it claims that it wants only to represent a small
number of butchers working in the back of the supermarket? Could a state court be expected to
deal with these subsidiary questions—even assuming that the NLRA did not inferentially bar it
from doing so?)
Since the 1940s, it has indeed been the federal Labor Act that has determined the rights of
unions and workers in picketing for an organizational or recognitional object. But the federal
policy has undergone several distinct changes.
In passing the original Wagner Act, Congress rejected the argument that mutuality required
a grant of protection against interference, coercion and restraint by labor organizations as well
as by employers; and although this decision was often defended on the ground that limitation of
union activities would bring about federal intervention in matters better regulated by local police
authorities, the true ground of objection was that such a measure would be inconsistent with the
policy of encouraging union organization and collective bargaining.
This erroneously conceived mutuality argument that since employers are to be
prohibited from interfering with organization of workers, employees and labor
organizations should be no more active than employers in the organization of employees
is untenable; this would defeat the very object of the bill. [S.Rep. 573, 74th Cong., 1st
Sess., p. 16.]
It soon became apparent, however, that the law could not in good conscience compel an
employer to bargain with one union as the certified representative of its employees and at the
same time protect the right of another union to picket in order to compel the employer to recognize
it as the bargaining representative of the same employees. Hence, in passing the Taft-Hartley
amendments of 1947, Congress included a provision, Section 8(b)(4)(C), which made it unlawful
for a union to engage in a strike or picketing for recognition in defiance of the certification of
another union as the bargaining representative of the employees in question.
666
In addition to Section 8(b)(4)(C), Congress in 1947 amended Section 7 to guarantee to
employees not only the preexisting right to form, join or assist labor organizations, but also “the
right to refrain from any or all such activities.” Moreover, Section 8(b)(1) was inserted making it
an unfair labor practice for a labor organization or its agents to restrain or coerce employees in
the exercise of rights guaranteed by Section 7.
For many years it seemed possible that Section 8(b)(1) might prohibit a minority union from
picketing for recognition regardless of whether any other union had already been certified. After
having rejected this view during the earlier years of the Taft-Hartley Act, the National Labor
Relations Board reversed its position in 1957 and declared that picketing under these
circumstances restrained and coerced employees in the exercise of their rights under Section
7. Drivers Local 639 (Curtis Bros.), 119 N.L.R.B. 232 (1957). When the issue reached the Supreme
Court, however, the Board was reversed, with the Court emphasizing the protection given to the
right to strike in Section 13 of the NLRA and cautioning against an “expansive reading” of general
provisions in such a way as to limit that right. The Court viewed the legislative history of Section
8(b)(1) as reflecting a congressional purpose to outlaw labor violence and not peaceful picketing
pressures. The Court also thought that the 1947 Congress could not have written Section
8(b)(4)(C) to target recognition picketing in a very narrow set of circumstances while at the same
time contemplating that Section 8(b)(1) would be used to ban such picketing far more broadly.
Finally, the Court pointed out that in 1959—the year before the case reached the Court—
Congress had once again specifically addressed the question of recognition picketing by adding
Section 8(b)(7) to the Labor Act; that section deals precisely with situations (such as that in Curtis
Bros.) where there is no incumbent certified union. Obviously, Congress believed that Section
8(b)(1) did not reach such picketing. NLRB v. Drivers Local No. 639, 362 U.S. 274, 80 S.Ct. 706,
4 L.Ed.2d 710 (1960).
The student should at this point examine Section 8(b)(7) with special care. It is exhaustively
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