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Chapter 1 — NLRB Jurisdiction - I. [1.1] Scope of Chapter
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II. National Labor Relations Board — Organization and Structure - III. Jurisdiction
- [1.4] Statutory (or Legal) Jurisdiction
- [1.5] Enterprises That Are Statutorily Exempted from the NLRB’s Jurisdiction
- [1.6] Employees That Are Statutorily Exempted from the NLRB’s Jurisdiction
- [1.7] Discretionary Jurisdiction
- [1.8] NLRB’s Discretionary Jurisdictional Standards
- [1.9] Criteria Used in Computing Jurisdictional Data
- [1.10] Investigation of Jurisdictional Issues
- [1.11] Advisory Opinions
- Chapter 2 — Representation Case Procedure
- I. [2.1] Scope of Chapter
- II. [2.2] Types of Representation Cases
- [2.3] Petition Seeking Certification of Representation (RC)
- [2.4] Demand for Recognition
- [2.5] The General Box Rule
- [2.6] The Existence of an Appropriate Unit
- [2.7] Decertification Petition (RD)
- [2.8] Who May File a Decertification Petition
- [2.9] The Unit in Which the Decertification Election Is Held
- [2.10] Categories That May Not Be Included in the Unit in a Decertification Election
- [2.11] Certification Not a Prerequisite
- [2.12] Employer Petition (RM)
- [2.13] Union Claims or Conduct
- [2.14] RM Petitions and Incumbent Unions
- [2.15] Petitions Used When No Question Concerning Representation (QCR) Exists
- [2.16] Union-Security Deauthorization Petition (UD)
- [2.17] Clarification of Certification (UC)
- [2.18] Amendment of Certification (AC)
- III. Powers of the Regional Director
- IV. [2.27] Filing and Investigation of Petition
- [2.28] Filing
- [2.29] Showing of Interest (30-Percent Rule)
- [2.30] Timeliness of Showing of Interest
- [2.31] Type of Showing of Interest
- [2.32] Party Designation
- [2.33] Validity of Authorization
- [2.34] Timeliness of Cards
- [2.35] Numerical Support
- [2.36] Construction Industry
- [2.37] Accretions to Existing Units
- [2.38] Section 8(b)(7)(C) Cases
- [2.39] Expanding or Fluctuating Units
- [2.40] Employer Petitions
- [2.41] Showing of Interest for Intervenors
- [2.42] Less than ten percent
- [2.43] A full intervenor
- [2.44] Cross-petitioner
- [2.45] Relationship of Showing of Interest to Unit
- [2.46] Processing of Petition
- [2.47] Election by Agreement — Agreement for Consent/Stipulation for Certification
- V. [2.48] Hearing Procedures
- VI. [2.51] Withdrawals
- [2.52] Withdrawal from Consent or Stipulation
- An RC Case
- [2.53] Petitioner Only Involved
- [2.54] Intervenor Present
- [2.55] Intervenor Seeks Withdrawal
- [2.56] Employer
- An RM Case
- [2.57] Employer-Petitioner
- [2.58] Union Claiming Recognition
- [2.59] Intervenor
- [2.60] An RD Case
- [2.61] The Prejudice Period
- [2.62] Withdrawal After Election
- Withdrawal from Hearing
- [2.63] Before Close of Hearing
- After Close of Hearing but Before Election
- [2.64] RC Petition, One Union
- [2.65] RC Petition, Two Unions
- [2.66] RM and RD Petitions
- [2.67] Withdrawal After Election
- [2.68] The Prejudice Period
- [2.69] Disclaimer
- VII. [2.70] Bars to Election
- [2.71] Lawful Recognition as a Bar
- [2.72] Successor Employer Bar
- [2.73] Certification Bar
- [2.74] Application of the One-Year Certification Rule
- Exceptions to the Rule
- [2.75] The Mar-Jac Exception
- [2.76] The Ludlow Exception
- Election Bar
- [2.77] Board Elections
- [2.78] Other Than Board Elections
- [2.79] Contract Bar
- Requirements To Be a Bar
- [2.80] Written Contract
- [2.81] Signatures of the Parties
- [2.82] Substantial Terms and Conditions
- [2.83] Coverage
- [2.84] Appropriate Unit
- [2.85] “Members Only”
- [2.86] Unlawful Union-Security Provisions
- [2.87] Illegal Check-Off Provisions
- [2.88] Racial Discrimination in Contracts
- [2.89] Hot-Cargo Agreements
- [2.90] Prehire Agreements
- [2.91] Master Agreement
- [2.92] Prior Ratification
- [2.93] Changed Circumstances Within the Contract Term
- Change in the Size of the Unit
- [2.94] Prehire contracts
- [2.95] The yardsticks
- [2.96] Change in the Nature of the Unit
- [2.97] Merger
- [2.98] Shutdown
- [2.99] Relocation
- [2.100] Assumption of contract
- [2.101] Duration of Contract
- [2.102] Fixed-Term Contracts
- [2.103] Contracts with No Fixed Term
- [2.104] Indefinite duration
- [2.105] Terminable at will
- [2.106] Temporary agreements
- [2.107] Extensions
- [2.108] Representative Status of Contracting Union
- [2.109] Schism
- [2.110] Basic intra-union split
- [2.111] Opportunity at a meeting
- [2.112] Reasonable time
- [2.113] Additional rules
- [2.114] Defunctness
- [2.115] Effect of Contract on Rival Claims or Petitions
- [2.116] Time of Filing of Petition
- [2.117] Amendment of Petition
- [2.118] “Substantial Claim”
- [2.119] The “Insulated Period”
- [2.120] The Period for Filing
- [2.121] The Impact of Bargaining History on Rival Petitions
- [2.122] Automatic Renewal Provisions
- [2.123] The “Premature Extension” Doctrine
- [2.124] Agreements Not To Represent Certain Employees
- [2.125] Express Promise
- [2.126] Mere Unit Exclusion Insufficient
- [2.127] Alleged Understanding Insufficient
- [2.128] Local Vis-à-Vis International Union
- [2.129] Inapplicability
- [2.130] Blocking Unfair Labor Practice Charge
- [2.131] Expedited Elections
- VIII. The Election
- [2.132] Election Date
- [2.133] The Ballot
- [2.134] The Question and Choices on the Ballot
- [2.135] Withdrawal from the Ballot
- [2.136] The Polling Place
- [2.137] The Notice of Election
- [2.138] Voting Eligibility
- [2.139] Observers
- [2.140] Closing of the Polls
- [2.141] Mail Ballots
- [2.142] Challenges
- The Count
- [2.143] Time and Place
- [2.144] Persons Present
- [2.145] “Clearing” Challenges
- [2.146] Interpretation of Ballots
- [2.147] Tally
- [2.148] Runoff Elections
- [2.149] Postelection Objections and Challenges
- [2.150] Investigation of Objections
- [2.151] Hearing on Objections and/or Challenges
- IX. Postelection Procedure
- X. [2.158] Appendix — Timely Filing of Petitions
- Chapter 3 — Representation Case — Substantive Matters
- I. [3.1] Scope of Chapter
- II. Employer Coverage: Statutory Exclusions and NLRB Jurisdiction
- III. [3.4] Qualifications of Representative
- IV. Appropriate Bargaining Units
- [3.9] General Statutory Principles
- [3.10] Statutory Limitations
- General Unit Determination Principles
- [3.11] The Concept of “An” Appropriate Unit
- [3.12] Presumptively Appropriate Bargaining Unit
- [3.13] Community-of-Interest Considerations
- [3.14] Bargaining History
- [3.15] Other Considerations
- Special Situations: Self-Determination Elections, Residual Units, and Accretions
- [3.16] Self-Determination Elections and Vote Pooling
- [3.17] Residual Units
- [3.18] Accretions
- Unit Scope Issues
- [3.19] Single-Location or Multilocation Unit
- [3.20] Plant-Wide or Departmental/Division Unit
- [3.21] Single-Employer or Multiemployer Unit
- Specific Units and Industries
- [3.22] Healthcare Institutions
- [3.23] Hotels and Motels
- [3.24] Insurance
- [3.25] Newspapers
- [3.26] Retail Stores
- [3.27] Universities and Colleges
- [3.28] Construction
- V. Unit Composition Issues
- [3.29] Definition of “Employee”
- [3.30] Workers Not Covered Under the NLRA
- [3.31] Agricultural Workers
- [3.32] Domestic Workers
- [3.33] Workers Employed by a Parent or Spouse
- [3.34] Independent Contractors
- [3.35] Supervisors
- [3.36] Workers Employed by an Employer Subject to the Railway Labor Act
- [3.37] Special Categories of Workers Governed by NLRB Policy
- [3.38] Craft Employees
- [3.39] Confidential Employees
- [3.40] Managers
- [3.41] Relatives of Management
- [3.42] Office Clericals and Plant Clericals
- [3.43] Professional Employees
- [3.44] Technical Employees
- [3.45] Guards
- [3.46] Drivers
- [3.47] Warehouse Employees
- VI. Voting Eligibility Issues
- [3.48] Generally
- Effect of Status or Tenure
- [3.49] Part-Time, Temporary, or Casual Employees
- [3.50] Seasonal Employees
- [3.51] Laid-Off Employees
- [3.52] Employees on Disability or Sick Leave
- [3.53] Trainees and Probationary Employees
- [3.54] Students
- [3.55] Dual-Function Employees
- [3.56] Leased Employees
- [3.57] Economic Strikers and Their Replacements
- [3.58] Runoffs and Rerun Elections
- [3.59] Special Formula for Construction, Oil Drilling, and Longshore Employees
- [3.60] Excelsior List
- VII. Objectionable Conduct
- Introduction
- [3.61] NLRB Authority and Procedure
- [3.62] Types of Misconduct That Invalidate Elections
- [3.63] Basic Standard for Evaluating Preelection Misconduct
- [3.64] Factors Relied on by the NLRB in Evaluating Preelection Misconduct
- [3.65] Third-Party Conduct
- [3.66] Free Speech Issues
- [3.67] De Minimis/Isolated Conduct
- [3.68] Cutoff Period for Determining When Conduct Will Be Considered as a Basis for Overturning an Election
- Conduct That Interferes with Laboratory Conditions
- [3.69] The General Shoe Doctrine
- [3.70] Prohibition Against Last-Minute Captive-Audience Speeches
- [3.71] Denial of Union Requests for Opportunity To Respond to Captive-Audience Speeches
- [3.72] Misrepresentations/Distribution of Misleading Campaign Propaganda
- [3.73] Ban Against Electioneering in the Polling Area
- [3.74] Calling Employees into Locus of Management Authority
- [3.75] Home Visits
- [3.76] Appeals to Racial/Ethnic Prejudice
- [3.77] Union Activity by Supervisors as a Basis for Overturning an Election
- [3.78] Third-Party Conduct
- [3.79] Election Interference Also Violating Unfair Labor Practice Provisions of the NLRA
- [3.80] Campaign Statements/Threats/Predictions
- [3.81] Restrictions on Right To Engage in Union Activity
- [3.82] Solicitation of Grievances
- [3.83] Granting/Withholding of Wage Increases or Benefits
- [3.84] Gifts, Raffles, and Prizes
- [3.85] Videotaping Employees
- [3.86] Union Offer To Waive Initiation Fees
- Interference Relating to Conduct of Election
- [3.87] NLRB Agent Misconduct
- [3.88] Conduct of Election Observers
- [3.89] Posting/Defacement of Election Notices
- [3.90] Language on Ballots
- [3.91] Failure To Comply with Excelsior Rule
- [3.92] Representative Character of the Vote
- [3.93] Remedies — Lufkin Rule
- Chapter 4 — The Bargaining Order and Related Remedies Under the NLRA
- I. [4.1] Scope of Chapter
- II. [4.2] Nature and Scope of NLRB Bargaining Orders
- III. Circumstances Under Which Bargaining Orders May Issue — In General
- [4.3] Bargaining Orders When the Employer Grants Recognition Without an Election
- [4.4] Bargaining Orders When the Employer Commits Election-Related Unfair Labor Practices
- [4.5] Bargaining Orders and §10(j) — The Interim Bargaining Order
- [4.6] Bargaining Orders When the Employer Commits Unfair Labor Practices in the Context of Decertification or Withdrawal of Recognition
- [4.7] Bargaining Orders When the Employer Disputes the Election Conduct and/or Results
- [4.8] Bargaining Orders for Refusals To Negotiate or Bad-Faith Bargaining
- [4.9] Bargaining Orders in Response to Unilateral Actions by Employer
- [4.10] Bargaining Orders upon Purchase of a Business
- IV. Bargaining Orders for Unfair Election Conduct by the Employer — The Gissel Doctrine
- [4.11] In General
- [4.12] The Gissel Decision
- Circumstances Dictating Issuance or Nonissuance of Order To Bargain
- When There Is Proof of Majority Status
- [4.13] In General
- [4.14] Existing NLRB Precedent
- [4.15] Conduct sufficient to warrant order
- [4.16] Conduct insufficient to warrant order
- [4.17] Hallmark violations
- [4.18] Court Criticism of the NLRB’s Position
- [4.19] Developments
- [4.20] When There Is No Proof of Majority Status
- [4.21] Effective Date and Duration of Order To Bargain
- [4.22] Factors Checklist
- [4.23] Practical Considerations
- V. [4.24] Appendix — Sample Notice to Employees
- VI. [4.25] Bibliography
- Chapter 5 — Collective-Bargaining Negotiations
- I. [5.1] Scope of Chapter
- II. [5.2] Introduction
- III. Duty To Bargain
- IV. [5.5] Good-Faith Bargaining
- V. [5.16] Time and Place for Negotiations
- VI. [5.17] Duty To Furnish Information
- VII. [5.18] Subjects of Bargaining
- VIII. Counterproposals
- IX. [5.28] Impasse
- X. [5.29] Execution of the Contract
- XI. [5.30] Strikes and Lockouts
- XII. [5.31] Bargaining After Execution of the Contract
- XIII. [5.36] Defenses to Lack of Good-Faith Bargaining
- XIV. [5.37] Contract Renewal
- XV. [5.38] Conclusion
- Chapter 6 — Strikes
- I. [6.1] Scope of Chapter
- II. [6.2] Definition of a Strike: Protected vs. Unprotected Strikes
- III. [6.3] Unfair Labor Practice Strike vs. Economic Strike
- [6.4] The Unfair Labor Practice Strike
- [6.5] Conversion
- [6.6] Conversion from Economic Strike to Unfair Labor Practice Strike
- [6.7] Conversion from Unfair Labor Practice Strike to Economic Strike
- [6.8] Struck Employer’s Right To Continue To Operate Its Business and Hire Replacements
- [6.9] Threats of Job Loss May Violate the Rights of Employees
- [6.10] Employer May Not Lay Off Employees Likely To Strike
- [6.11] Reinstatement Rights of Striking Employees
- Reinstatement Rights of Unfair Labor Practice Strikers
- [6.12] In General
- [6.13] Timing of Reinstatement and Right to Backpay
- [6.14] Reinstatement Rights of Economic Strikers
- [6.15] Permanent or Temporary Replacements
- [6.16] Status of Strikebreakers
- [6.17] Legitimate and Substantial Business Justifications for Refusing Reinstatement
- [6.18] Voting Eligibility of Striking Employees and Their Replacements
- [6.19] Eligibility of Strikers
- [6.20] Eligibility of Replacements
- IV. [6.21] Strikers Not Entitled to Protection
- [6.22] Illegal Conduct During a Strike
- [6.23] Unlawful Strike Activity
- [6.24] Sit-Down Strikes
- [6.25] Unauthorized Strikes
- [6.26] Partial Strikes and Slowdowns
- [6.27] Strikes Endangering Health and Safety of Others
- [6.28] Strikes in Violation of Notice Requirements
- [6.29] Notice Requirements for Strikes Against Healthcare Facilities
- [6.30] Strikes in Violation of No-Strike Clause
- [6.31] Sympathy Strikers
- V. [6.32] Lockouts
- VI. [6.35] Strike Plan
- VII. [6.36] In-Plant Actions as an Alternative to the Strike
- Chapter 7 — Labor and NLRB Injunctions
- I. [7.1] Introduction
- II. NLRB Injunctions Under the NLRA
- [7.2] Section 10(j) Injunctions
- [7.3] Judicial Standard
- [7.4] Likelihood of Success on the Merits
- [7.5] Adequacy of Remedy, Irreparable Harm, and Balancing of the Harms
- [7.6] Public Interest
- [7.7] Tactical Considerations
- [7.8] Section 10(l) Injunctions
- [7.9] Judicial Standard
- [7.10] Reasonable Cause
- Equitable Test Under §10(l)
- [7.11] Likelihood of success
- [7.12] Adequate remedy, irreparable injury, and public interest
- [7.13] Tactical Considerations
- III. Injunctions Under State Law
- Chapter 8 — Enforcement of Collective-Bargaining Agreements
- I. [8.1] Scope of Chapter
- II. Sources of Authority
- III. Arbitration
- [8.5] In General
- Suits To Compel Arbitration
- [8.6] Presumption of Arbitrability
- [8.7] Substantive Arbitrability
- [8.8] Disputes Between Employee Benefit Funds and Employers
- [8.9] Substantive Arbitrability and Res Judicata
- [8.10] Procedural Arbitrability
- [8.11] Invocation of Grievance Procedures
- [8.12] Time Limits for Suits To Compel Arbitration
- Suits To Enforce and Vacate Arbitration Awards
- [8.13] General Rules for Enforcement
- [8.14] Waiver
- Grounds for Vacating Arbitration Awards
- [8.15] Failure To Draw Essence from Contract/Beyond Arbitrator’s Authority
- Challenges Based on Legitimacy of Arbitral Process
- [8.16] Fraud
- [8.17] Arbitral misconduct
- [8.18] Bias
- [8.19] Public Policy
- [8.20] Development of the general principles
- [8.21] “Well-defined and dominant”: W.R. Grace
- [8.22] Misco
- [8.23] Eastern Associated Coal
- [8.24] Current circuit split
- [8.25] Common grounds for public policy challenges
- Public safety
- [8.26] Safety at nuclear plants
- [8.27] Recklessness
- [8.28] Drug and alcohol use
- [8.29] Sexual harassment/sexual assault
- [8.30] Workplace violence/fighting
- [8.31] Employee fraud
- [8.32] Arbitrator conduct in violation of public policy
- [8.33] Remedies
- [8.34] Statutes of Limitation
- Secondary Issues in Suits To Compel and Enforce Arbitration Awards
- [8.35] Attorneys’ Fees
- [8.36] Prejudgment Interest
- [8.37] Mitigation of Damages
- [8.38] Post-Award Issues
- [8.39] Award Silent or Ambiguous as to Remedies
- [8.40] Questions Regarding Prospective/Precedential Effect of Award
- [8.41] Questions Regarding Finality of Award
- [8.42] Special Arbitration Boards
- IV. Enforcing Collective-Bargaining Agreements in the Absence of Arbitration Clause or When Arbitration Clause Is Limited
- V. Rights of Individual Employees and Others To Enforce Collective-Bargaining Agreements
- Duty of Fair Representation
- [8.45] In General
- [8.46] Standard of Proof
- [8.47] Statute of Limitations
- [8.48] Apportionment of Damages
- [8.49] Rights of Individual Employees After Issuance of Arbitration Awards
- [8.50] Rights of Employees and Others in the Absence of Collective Representation
- Retiree Benefit Suits
- [8.51] Parties and Forums
- [8.52] Substantive Rights
- VI. Injunctions To Enforce Collective-Bargaining Agreements
- VII. Employer Damage Actions
- VIII. Questions Relating to Existence of Obligations Under Collective-Bargaining Agreement
- IX. Relationship Between LMRA §301 and Other Laws
- [8.65] Preemption
- Preemption Doctrines Under the NLRA
- [8.66] Garmon Preemption
- [8.67] Machinists Preemption
- LMRA §301 Preemption
- [8.68] Development, Expansion, and Retrenchment
- [8.69] Application of LMRA §301 Preemption in the Lower Federal Courts
- [8.70] LMRA §301 Preemption of Illinois Wage and Hour Law
- [8.71] NLRB Interpretation of Collective-Bargaining Agreements
- NLRB Deferral to Arbitration
- [8.72] Post-Arbitration Deferral
- [8.73] Pre-Arbitration Deferral
- [8.74] Relationship Between Arbitration and NLRB in Representational and Related Matters
- [8.75] Relationship Between LMRA §301 and Title VII/Americans with Disabilities Act
- [8.76] Relationship Between LMRA §301 and Fair Labor Standards Act
- [8.77] Relationship Between LMRA §301 and Bankruptcy Law
- Chapter 9 — Interference with Rights of Employees
- I. [9.1] Introduction
- II. Who Is and Who Is Not Protected Under the NLRA?
- III. [9.7] Employer’s Responsibility for the Conduct of Others
- IV. [9.8] Employer Interference, Restraint, or Coercion
- [9.9] Economic Coercion and Inducement — Changes in Wages, Hours, and Working Conditions
- [9.10] Polls, Interrogation, and Surveillance
- [9.11] Polls
- [9.12] Interrogation
- [9.13] Surveillance
- [9.14] Speeches —Threat or Prediction
- [9.15] No Distribution and No Solicitation Rules
- [9.16] Interference with Employees’ Rights During a Strike
- [9.17] Lockouts
- [9.18] Plant Closures
- [9.19] Employer Domination or Assistance to a Labor Organization
- V. [9.20] Discipline, Discharge, and Other Conduct Under §§8(a)(1) and 8(a)(3) of the NLRA
- [9.21] Section 8(a)(1) — Concerted Activities for Mutual Aid or Protection
- [9.22] Employees’ Social Media Activity and the NLRA
- [9.23] Early Cases Regarding Employee Discipline Under §8(a)(1)
- [9.24] NLRB Office of the General Counsel Issues Advice Memoranda Regarding Employee Discipline Under §8(a)(1)
- [9.25] NLRB Acting General Counsel Issues Three Reports on Social Media Cases
- [9.26] NLRB Issues First Decision
- [9.27] Section 8(a)(3) — Discipline and Discharges Intended To Discourage Union Membership
- [9.28] Other Discriminatory Conduct
- [9.29] Union Representation at Employer Interviews
- [9.30] Discipline of Supervisors
- [9.31] Discipline of Union Stewards
- [9.32] Retaliatory Lawsuits
- VI. [9.33] Discharge and Discrimination Under §8(a)(4) of the NLRA
- Chapter 10 — Union Unfair Labor Practices
- I. [10.1] Scope of Chapter
- II. [10.2] Historical Background
- III. Union Interference with Employee Rights
- [10.3] NLRA §7 — Rights of Employees
- [10.4] NLRA §8(b)(1)(A) — Restraint and Coercion
- [10.5] Violence and Threats
- [10.6] Restrictions on Resignation from Union Membership
- [10.7] Union Rulemaking and Enforcement of Union Discipline
- [10.8] Union Dues and Fees
- [10.9] Use of Adversarial Proceedings
- [10.10] Other NLRA §8(b)(1)(A) Violations
- [10.11] NLRA §8(b)(2) —Hire and Tenure of Employment
- [10.12] Hiring Halls
- [10.13] Discriminatory Conditions for Membership
- [10.14] Superseniority Issues
- [10.15] NLRA §8(b)(5) —Excessive Initiation Fees and Dues
- [10.16] NLRA §8(f) — Prehire Agreements
- IV. Union Interference with Employer Rights
- [10.17] NLRA §8(b)(3) —Collective-Bargaining Process
- [10.18] “Good Faith” Defined
- [10.19] Failure To Furnish Information
- [10.20] Absence of Bargaining
- [10.21] Insistence on Nonmandatory Subjects
- [10.22] Unilateral Changes to Contract
- [10.23] Failure To Give NLRA §8(d) Notice
- [10.24] Unilateral Change in Scope of Unit
- [10.25] Healthcare Institutions
- [10.26] NLRA §8(b)(1)(B) — Coercion in Selection of Collective-Bargaining Representatives
- [10.27] NLRA §8(b)(6) —Featherbedding
- [10.28] NLRA §8(b)(7) —Recognitional and Organizational Picketing
- [10.29] Definition of “Picketing”
- [10.30] Recognitional and Nonrecognitional Objectives
- [10.31] Picketing To Protest Unfair Labor Practices or Discharges
- [10.32] Area Standards Picketing
- [10.33] Picketing for Members-Only or Prehire Agreements
- Prohibited Recognitional Picketing
- [10.34] Picketing When Another Union Is Currently Recognized
- [10.35] Picketing Within 12 Months of Valid Election
- [10.36] Picketing of Unreasonable Duration Absent Petition
- [10.37] Informational Picketing Proviso
- V. [10.38] Union Interference with Rights of Neutrals
- [10.39] General Scheme of NLRA §8(b)(4)
- Prohibited Conduct
- [10.40] Coercion of Employers
- [10.41] Inducement of Employees
- [10.42] Coercion of Self-Employed Persons
- [10.43] Prohibited Objectives
- [10.44] NLRA §8(b)(4)(ii)(A) — Organizational Membership and Hot-Cargo Agreements
- [10.45] NLRA §8(b)(4)(ii)(B) — Secondary Boycotts
- [10.46] Primary vs. Secondary Activity
- [10.47] Work Preservation: Containerization
- [10.48] Common Situs and Ambulatory Picketing
- [10.49] Related Work Doctrine and Reserved Gate
- [10.50] Ally Doctrine
- [10.51] Struck work
- [10.52] Work not performed “but for” strike
- [10.53] Common Control and Straight-Line Operations
- [10.54] NLRA §8(b)(4)(ii)(C) — Picketing or Striking Against Certification
- [10.55] NLRA §8(b)(4)(ii)(D) —Jurisdictional Disputes
- [10.56] Conduct Not Prohibited —NLRA §8(b)(4) Provisos
- [10.57] Individual Rights in Primary Strikes
- [10.58] Handbilling and Consumer Picketing
- [10.59] NLRA §8(e) — Hot-Cargo Contracts
- [10.60] Exception for Construction Subcontracting
- [10.61] Exception for Garment Industry
- VI. Remedies for Unfair Labor Practices
- VII. [10.69] Judicial Review and Enforcement
- Chapter 11 — The Duty of Fair Representation
- I. Introduction
- II. Sources of the Duty
- III. Jurisdictional Aspects
- IV. Nature of the Duty
- [11.13] In General
- [11.14] Initial Test
- [11.15] Doctrine of Vaca v. Sipes
- [11.16] Arbitrary, Discriminatory, or Bad-Faith Conduct vs. Negligence
- [11.17] Duty of Fair Representation at Arbitration
- [11.18] Negligent Union Conduct in Wrongful-Death and Safety Litigation
- [11.19] Scope of the Duty — In General
- [11.20] Negotiation of the Bargaining Agreement
- [11.21] Administration of the Agreement
- [11.22] Beneficiaries of the Duty
- V. Factual Contexts Giving Rise to the Duty of Fair Representation
- [11.23] In General
- Discrimination Cases
- [11.24] In General
- [11.25] Title VII and Fair Representation
- [11.26] Fair Representation and Political Situations
- [11.27] Sacrifice of Minority Rights
- [11.28] Fair Representation and Dissident Members
- [11.29] Outside Political Causes
- [11.30] Physical or Mental Conditions
- VI. Exhaustion of Nonjudicial Remedies
- [11.31] Exhaustion Under the Bargaining Agreement — Generally
- [11.32] Application of the Maddox Doctrine
- [11.33] Fair Representation Exception
- [11.34] Repudiation Exception
- [11.35] Exception of Nonexclusive or Inadequate Grievance Machinery
- [11.36] Exhaustion of Intra-Union Remedies
- [11.37] Application of the Intra-Union Exhaustion Requirement
- [11.38] Exceptions to the Requirement of Intra-Union Exhaustion
- [11.39] Statutory Exceptions
- [11.40] Futility Exception
- [11.41] Inadequate Remedies
- [11.42] Who May Invoke the Defense
- VII. Enforcement of the Right of Fair Representation
- [11.43] Selecting the Forum — In General
- [11.44] State Court Actions
- [11.45] Federal Court Actions
- [11.46] National Labor Relations Board
- [11.47] Other Federal Agencies
- [11.48] State Agencies
- [11.49] Election of Remedies
- Federal and State Court Remedies for Breach of Duty of Fair Representation
- [11.50] Backpay and Related Damages
- [11.51] Emotional Distress Damages
- [11.52] Punitive Damages
- [11.53] Attorneys’ Fees
- [11.54] Equitable and Other Relief
- [11.55] National Labor Relations Board Remedies
- VIII. Procedural Aspects and Problems
- IX. [11.64] Conclusion
- X. [11.65] Appendix: Resource Materials on the Duty of Fair Representation
- Chapter 12 — Employee Committees
- Chapter 13 — Antitrust Problems
- I. Scope of Chapter
- II. Qualified Labor Exemption
- [13.3] Overview of the Qualified Labor Exemption
- [13.4] Judicial Development of the Qualified Labor Exemption
- [13.5] Qualified Labor Exemption and Apex Hosiery
- [13.6] Distinction Between Employee-Union and Independent Contractors
- [13.7] Act of Union Officers, Agents, and Members
- [13.8] Collective-Bargaining Agreement Conspiracies
- III. Legality of Specific Activities and Practices
- [13.9] Boycotts
- [13.10] Price-Fixing
- [13.11] Restrictions on the Selection of Suppliers, Customers, and Methods of Production
- [13.12] Withholding Union Labor
- [13.13] Picketing, Strikes, and Violence
- [13.14] Imposing Collective-Bargaining Agreement Terms on Employers Not Party to the Agreement
- [13.15] Joint Employer Conduct, Including Multiemployer Bargaining and Mutual Aid Pacts
- IV. Other Issues
- V. [13.20] Resources
- Chapter 14 — The Purchase, Sale, Relocation, or Shutdown of a Business
- I. [14.1] Scope of Chapter
- II. Duties of the Seller Under the National Labor Relations Act
- [14.2] Sale or Partial Closing for Discriminatory Reasons
- [14.3] Application of NLRA §8(a)(3) to Business Transactions
- [14.4] “Runaway Shop” Remedies
- [14.5] Employers Have a Limited Duty To Engage in Decision Bargaining Based on the Type of Transaction
- [14.6] Employer’s Duty To Bargain Over Decision To Close
- [14.7] Sales and Mergers
- [14.8] Subcontracting Work
- [14.9] Relocation of Work
- [14.10] Obligations Under a Collective-Bargaining Agreement
- [14.11] Successorship and Assignment Clauses
- [14.12] Injunctive Relief
- [14.13] Sellers’s Duty To Bargain over Effects
- III. [14.14] Duties of a Purchaser Under the National Labor Relations Act
- Form of Acquisition
- [14.15] Purchase of Stock
- [14.16] Merger
- [14.17] Purchase or Lease of Assets
- [14.18] “Successorship Doctrine”
- [14.19] Continuity of Workforce
- [14.20] Continuity of Business and Operations
- [14.21] Continuity of Appropriate Bargaining Unit
- [14.22] Accretion
- [14.23] Factors Constituting Accretion
- [14.24] Employee Self-Determination and Community of Interest
- [14.25] Functional Relation to Existing Operations
- [14.26] Separate Supervision
- [14.27] Successor’s Obligation To Bargain
- [14.28] Assumption of the Collective-Bargaining Agreement
- [14.29] Illinois Collective Bargaining Successor Employer Act
- IV. [14.30] Liability of Successor for Predecessor’s Outstanding Unfair Labor Practices or Unlawful Employment Practices
- V. [14.33] WARN — The Duty To Give Notice of Plant Closing or Mass Layoff
- [14.34] Which Employers Are Covered by the WARN Act?
- [14.35] When Is a WARN Notice Required?
- [14.36] Exceptions to WARN Notice Requirements
- [14.37] Sale of a Business
- [14.38] Temporary Facilities or Completion of Particular Projects
- [14.39] Strike or Lockout
- [14.40] Reduction of WARN Notification Period
- [14.41] Faltering Company Exception
- [14.42] Unforeseeable Business Circumstance Exception
- [14.43] Cautionary Note for Unforeseen Business Circumstances and Faltering Business Exception
- [14.44] Natural Disaster Exception
- [14.45] Form of a Required WARN Notice
- [14.46] Penalties for WARN Violations
- [14.47] Other Considerations
- [14.48] Illinois WARN
- VI. [14.49] Employee Benefit Plan Considerations in Purchases or Sales of Businesses
- VII. [14.55] Restructuring Labor Agreements Under Bankruptcy Law
- Chapter 15 — State Laws
- I. [15.1] Scope of Chapter
- II. Illinois Wage Laws
- [15.2] Minimum Wage Law
- [15.3] Illinois Wage Payment and Collection Act
- [15.4] Illinois Wage Assignment Act and Wage Deductions for the Benefit of Creditors
- [15.5] Prevailing Wage Act
- [15.6] Miscellaneous Acts Regulating Wages
- [15.7] Equal Wage Act
- [15.8] Trusts for Employees Act
- [15.9] Preference of Claims for Wages Act
- [15.10] Employee Medical Contribution Act
- [15.11] Employee Benefit Contribution Act
- [15.12] Sales Representative Act
- [15.13] Day and Temporary Labor Services Act
- [15.14] Wages of Women and Minors Act
- [15.15] Earned Income Tax Credit Information Act
- [15.16] Equal Pay Act of 2003
- III. Hours, Meals, and Child Labor
- IV. Working Conditions
- [15.19] Toxic Substances Disclosure to Employees Act
- [15.20] Election Code
- [15.21] Jury Act and Jury Commission Act
- [15.22] Medical Examination of Employees Act
- [15.23] Personnel Record Review Act
- [15.24] Lie Detectors
- [15.25] Illinois Trade Secrets Act
- [15.26] Employee Patent Act
- [15.27] Right to Privacy in the Workplace Act
- [15.28] School Visitation Rights Act
- [15.29] Employee Washroom Act
- [15.30] Nursing Mothers in the Workplace Act
- [15.31] Victims’ Economic Security and Safety Act
- [15.32] Family Military Leave Act
- [15.33] Illinois Worker Adjustment and Retraining Notification Act
- [15.34] Employee Blood Donation Leave Act
- [15.35] Workplace Literacy Act
- [15.36] Smoke Free Illinois Act
- [15.37] AIDS Confidentiality Act
- [15.38] Employee Classification Act
- [15.39] Employee Credit Privacy Act
- [15.40] Employment of Illinois Workers on Public Works Act
- [15.41] Employment Record Disclosure Act
- [15.42] Genetic Information Privacy Act
- [15.43] Whistleblower Act
- Index
- Librado Arreola
Librado Arreola
Librado Arreola is a Shareholder at Asher, Gittler & D’Alba, Ltd., in Chicago, where he focuses on traditional union side labor law and employee benefits law. He is a member of the American, Illinois State, and Chicago Bar Associations. Mr. Arreola received his B.A. from the University of Illinois at Urbana-Champaign and his J.D. from Northeastern University School of Law.
- Jennifer M. Ballard
Jennifer M. Ballard
Jennifer M. Ballard is an associate in the Chicago office of Hinshaw & Culbertson LLP. She represents private and public sector employers in a full range of labor and employment matters. Ms. Ballard regularly represents clients in federal and state courts, before the U.S. Equal Employment Opportunity Commission and similar state agencies, and before both the U.S. and Illinois Departments of Labor. Her traditional labor practice includes representing employers during union organizing efforts, collective bargaining negotiations, grievance and arbitration proceedings, strikes, and administrative hearings before the National Labor Relations Board and the Illinois Educational Labor Relations Board. In 2012, 2013, and 2014, Ms. Ballard was selected to the Rising Stars list, in the area of Employment Litigation, by Illinois Super Lawyers magazine. In 2009, she was named by Diversity MBA Magazine to the “Emerging Leader” section of its “Top 100 Under 50 Diverse Executive & Emerging Leaders.” Ms. Ballard is also a coauthor of Ch. 1, NLRB Jurisdiction, THE LABOR LAW HANDBOOK (IICLE®, 2013). Ms. Ballard earned her J.D. from Loyola University Chicago School of Law, where she earned a Certificate in Health Law.
- Derek G. Barella
Derek G. Barella
Derek G. Barella is a Partner at Winston & Strawn, in Chicago, where he concentrates in labor and employment relations. Mr. Barella received his B.S. cum laude from Ball State University’s School of Business and his J.D. cum laude from Indiana University School of Law.
- Barry M. Bennett
Barry M. Bennett
Barry M. Bennett is a Partner at Dowd, Bloch, Bennett, Cervone, Auerbach & Yokichin, in Chicago, where he practices in the areas of labor and employment law, representing unions and individual employees. Mr. Bennett is a Fellow of the College of Labor and Employment Lawyers, is included in the list of Illinois Super Lawyers published by Law & Politics and Chicago Magazine, and has been named a Leading Lawyer by the Leading Lawyers Network. He received his A.B. from the University of Michigan and his J.D. from Harvard Law School.
- Eugene A. Boyle
Eugene A. Boyle
Eugene A. Boyle is a Partner at Neal, Gerber & Eisenberg LLP in Chicago, where he represents employers in all facets of labor and employment law. He is a member of the Employment Rights and Responsibilities Committee of the American Bar Association, he has an AV Preeminent Rating by Martindale Hubbell, and he was named an Illinois Super Lawyer in 2009 – 2011 and 2016 – 2017. Mr. Boyle received his B.A. from Lawrence University and his J.D. from Washington University School of Law, where he was the Executive Editor of the Journal of Urban and Contemporary Law.
- Paul H. Burmeister
Paul H. Burmeister
Paul H. Burmeister is a Partner with Davis & Campbell, in Chicago, where he concentrates his practice in labor and employment matters. Mr. Burmeister is a member of the National Association of College and University Attorneys and the Illinois State Bar Association. He received his B.A. and M.A. from the University of Illinois Urbana-Champaign and his J.D. from Loyola University Chicago School of Law.
- Robert S. Cervone
Robert S. Cervone
Robert S. Cervone is a Partner at Dowd, Bloch, Bennett, Cervone, Auerbach & Yokichin in Chicago, where his practice is concentrated in traditional labor law, including labor contract negotiations, arbitration, and litigation before state and federal courts, the NLRB, and various state administrative labor agencies. Prior to entering private practice, he served nine years with the NLRB. Mr. Cervone received his J.D. ranked second in his class from Sturm College of Law — University of Denver, where he received numerous awards for academic achievement.
- Paul J. Cherner
Paul J. Cherner
Paul J. Cherner is Of Counsel at Klein Dub & Holleb, Ltd., in Highland Park, where he focuses on labor and employment law. He is a member of the Wisconsin, District of Columbia, and American Bar Associations. Mr. Cherner received his B.A. from Temple University and his J.D. from the University of Wisconsin-Madison.
- Kenneth R. Dolin
Kenneth R. Dolin
Kenneth R. Dolin is a Partner at Seyfarth Shaw LLP in Chicago, where he concentrates his practice in labor and employment law. He was named in Best Lawyers in America from 2011 through 2019 and was listed in Chambers USA: America’s Leading Business Lawyers, Labor & Employment in Illinois. He is also a Fellow in the College of Labor and Employment Lawyers. Mr. Dolin received his B.A. with honors from the University of Wisconsin, his J.D. cum laude from the University of Illinois, his M.I.L.R. from Cornell University, and his LL.M. in Labor Law from New York University.
- Damon E. Dunn
Damon E. Dunn
Damon E. Dunn is a Member at Funkhouser Vegosen Liebman & Dunn Ltd. in Chicago, where he concentrates in litigation. He is a member of the Illinois State and Chicago Bar Associations. He has been ranked a Leading Lawyer and is a frequent contributor to the Media Law Resource Center. Mr. Dunn received his B.A. with honors from the College of Wooster and his J.D. with high honors from IIT Chicago-Kent College of Law, where he was a member of the Bar and Gavel Society and received the American College of Trial Lawyers medal.
- Molly Eastman
Molly Eastman
No bio available.
- Ross D. Eberly
Ross D. Eberly
No bio available.
- Daniel J. Fazio
Daniel J. Fazio
No bio available.
- Marvin Gittler
Marvin Gittler
No bio available.
- Andrew S. Goldberg
Andrew S. Goldberg
No bio available.
- Lisa Goyer
Lisa Goyer
Lisa Goyer is Of Counsel at Husch Blackwell LLP in Springfield, Missouri, where she focuses on food and agribusiness. She has been a regular speaker and authored several articles on various employee benefit topics. Ms. Goyer received her B.A. magna cum laude from the University of Missouri and her J.D. from the University of Illinois College of Law.
- Josiah A. Groff
Josiah A. Groff
Josiah A. Groff is an associate at Dowd, Bloch, Bennett, Cervone, Auerbach & Yokichin in Chicago, where he represents unions, benefit funds, and individual employees and has experience handling a variety of labor and employment law matters, including administrative proceedings before the NLRB, the IELRB and the EEOC, as well as labor arbitrations. He also has experience in collection of fund contributions. He received his undergraduate degree from Goshen College and his J.D. from George Washington University Law School.
- Timothy F. Haley
Timothy F. Haley
Timothy F. Haley is Senior Counsel at Seyfarth Shaw LLP in Chicago, where he concentrates on labor and employment law. He is a member of the Illinois State Bar Association, is a frequent speaker on workforce issues and has authored or coauthored numerous articles and chapters. Mr. Haley, a former commissioned officer in the United States Army, received his B.A. from Washington & Lee University and his J.D. from the University of Virginia School of Law.
- Brian A. Hartstein
Brian A. Hartstein
Brian A. Hartstein is a Partner at Quarles & Brady LLP, in Chicago, where he focuses his practice on labor and employment issues. Mr. Hartstein has been selected as an Illinois Emerging Lawyer in Employment & Labor: Management by Law Bulletin Media (2015 – present). He received his B.S. from Cornell University School of Industrial and Labor Relations and his J.D. from Georgetown University Law Center.
- J. Kevin Hennessy
J. Kevin Hennessy
J. Kevin Hennessy is a Partner at Vedder Price in Chicago, where he focuses on labor and employment law. He is a member of the American Bar Association and the ADR and Employment and Labor Relations Law Committees within the ABA. He is a Fellow of the College of Labor and Employment Lawyers. Mr. Hennessy received his B.A. from the University of Illinois and his J.D. from Loyola University Chicago School of Law.
- Mark L. Juster
Mark L. Juster
Mark L. Juster is a Partner at Laner Muchin, Ltd., in Chicago, where he focuses on labor and employment law. Mr. Juster has written and lectured extensively in the area of labor relations and employment law. He is a member of the American Bar Association, where he serves on the Committee on Development of the Law; a member of the Human Resources Management Association of Chicago; and a National Commissioner of the Anti-Defamation League and Past Chairman of the Chicago Midwest Region of the League. Mr. Juster received his B.A. with honors from Miami University (Ohio) and his J.D. from Washington University School of Law.
- Mari Kaluza
Mari Kaluza
No bio available.
- Andrew R. Laidlaw
Andrew R. Laidlaw
No bio available.
- Howard L. Mocerf
Howard L. Mocerf
Howard L. Mocerf is a practice group attorney at Greenberg Traurig, LLP, in Chicago, where he focuses on management in labor and employment law. He is a member of the American and Illinois State Bar Associations, the Jewish United Fund of Metropolitan Chicago, and the Anti-Defamation League. Mr. Mocerf received his B.A. from Washington and Lee University and his J.D. from the University of Louisville Louis D. Brandeis School of Law.
- Cara Ottenweller
Cara Ottenweller
Cara Ottenweller is an associate at Vedder Price in Chicago, where she focuses on labor and employment law. She is a member of the American Bar Association and was selected as an Illinois Rising Star by Super Lawyers Magazine and as an Illinois Emerging Lawyer, an affiliate of Leading Lawyers. Ms. Ottenweller received her B.A. from Indiana University and her J.D. magna cum laude from Valparaiso University School of Law, where she was an Executive Editor for the Valparaiso University Law Review.
- Marilyn A. Pearson
Marilyn A. Pearson
No bio available.
- John Rearden Jr.
John Rearden Jr.
No bio available.
- Natalie J. Scruton
Natalie J. Scruton
No bio available.
- Terrence P. Smith
Terrence P. Smith
No bio available.
- David L. Streck
David L. Streck
David L. Streck is an attorney with Pactiv LLC in Lake Forest. He received his B.A. from Northwestern University and his J.D. from Loyola University Chicago School of Law.
- Jon Zimring
Jon Zimring
Jon Zimring is a Shareholder at Greenberg Traurig, LLP, in Chicago, where he focuses on management in labor and employment law. He is a member of the DirectEmployers Compliance Advisory Board, and he is listed as a Leading Lawyer, a Super Lawyer, and one of 40 Illinois Attorneys Under 40 to Watch. Mr. Zimring received his B.A. with high honors from the University of Michigan and his J.D. from Northwestern Pritzker School of Law.
Labor Law Handbook (The) (ARCHIVED 2013 EDITION)
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