Final Exam

Labor Law - Spring 2002

Instructions: This is an open book exam. You may use any written source (except another student’s exam paper) you choose in answering the questions set forth below. The exam must be completed in the designated exam room or the designated typing room unless a variance has been approved by the Dean of Students. Statutory references are to the National Labor Relations Act (Act) unless otherwise indicated. There is a total of 110 points on the exam. The exam will be graded on a 100-point scale.

Part I - Fact Pattern Analysis

(50 points – 85 minutes)

1. The Employer and the Union were parties to a collective bargaining agreement that expired on March 31. The agreement provided that seniority would prevail in determining the rights and obligations of the Employer and its employees. The parties reached an impasse in negotiations and all 15 of the bargaining unit employees went on strike on April 1. Without prior notice to the Union or providing it with an opportunity to bargain, the Employer contracted with a temporary help agency for ten replacement employees to work at the Employer’s facility and continued to operate the plant using the temporary help employees and supervisors. On May 1, the Union, on behalf of all of the striking employees, made an unconditional offer to return to work. An office clerical employee sympathetic to the striking employees furnished the Union with a purloined copy of a confidential memo written by the Employer’s president. The memo instructed the Employer’s human resources manager to find a way to avoid having to reinstate five named employees because of their leadership roles in the Union. By coincidence, the five are the least senior employees.

(a) Did the Employer violate the Act by utilizing temporary help agency employees and supervisors to do bargaining unit work during the strike? (5 points)

(b) Assume that the Employer could lawfully engage in the conduct described above in subparagraph (a). Did the Employer nonetheless violate the Act by failing to give the Union prior notice and an opportunity to bargain before engaging in that conduct? (5 points)

(c) Would your answers in (a) and (b) above be the same or different if the Employer and the temporary help agency entered into an agreement providing that the latter would furnish ten employees to do bargaining unit work on a permanent basis? (5 points)

(d) Could the Union lawfully picket at the temporary help agency’s premises to protest its furnishing temporary employees to perform bargaining unit work (regardless of whether it is doing so on a temporary or permanent basis)? (5 points)

(e) Assume that the human resources manager offers reinstatement to the five most senior employees but informs the Union that none of the remaining strikers can be reinstated because there are no additional openings. Put aside for the moment any defenses the Employer may have. Do the facts set forth above satisfy the elements of a Section 8(a)(3) violation? (For exam purposes you may assume that the memo would be admissible in evidence.) (5 points)

(f) On what basis would you expect the Employer to contend that it has not violated Section 8(a)(3) of the Act? (5 points)

(g) Assume that the human resources manager refuses to carry out the president’s instruction to find a way to avoid reinstating the five employees named in the memo and is discharged as a result. Put aside for the moment any issues of federal law. On what common law basis would the Employer likely rely in asserting that it could lawfully discharge the human resources manager? (5 points)

(h) Again put aside for the moment any issues of federal law. On what common law basis (in at least some states) would the human resources manager likely rely in contesting the discharge? (5 points

(i) What federal law defense would the Employer likely assert in response to any common law action brought by the human resources manager? (5 points)

(j) Did the Employer violate Section 8(a)(1) of the Act by discharging the human resources manager? (5 points)

Part II - The Underlying Theory

(50 points – 85 minutes)

1. What are the conflicting policy interests in issue in Republic Aviation and Lechmere? How did the Supreme Court resolve these conflicts? (10 points)

2. In Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287, 293 (1941), the United States Supreme Court stated that “Peaceful picketing is the workingman’s means of communication.”

(a) Citing and drawing on relevant Supreme Court precedent, what are the strongest arguments that can made in support of the proposition that “peaceful picketing” by a labor organization should be afforded the same First Amendment protection as other forms of speech? (10 points)

(b) Again citing and drawing on relevant Supreme Court precedent, what are the strongest arguments that can be made in support of the proposition that “peaceful picketing” by a labor organization should be afforded less First Amendment protection than other forms of speech? (10 points)

3. (a) What are the two potentially conflicting policy considerations that underlie the prohibition on secondary boycotts in Section 8(b)(4)(i)(ii)(B) of the Act? How are those policy considerations reconciled in Sailors Union of the Pacific (Moore Dry Dock)? (5 points)

(b) How are those conflicts resolved in Douds v. Metropolitan Federation of Architects? (5 points)

4. Are NLRB v. Fruit & Vegetable Packers & Warehousemen, Local 760 [Tree Fruits] and NLRB v. Retail Store Employees Union, Local No. 1001 (Safeco Title Insurance) consistent in their underlying premises and reasoning? How do the underlying premises and reasoning of these two cases relate to the conflicting policy considerations that underlie the prohibition on secondary boycotts? ( 10 points)

Part III - Extra Credit

(10 points - 10 minutes)

Circle the one correct answer for each question below on this exam sheet. Each question is worth two points.

1. Which one of the following is irrelevant in determining whether an employer may lawfully prohibit employees from engaging in activities in support of a union while on the the employer’s premises?

(a) The nature of the work place.

(b) The employer’s motivation for the prohibition.

(d) The geographic location of the work place.

2. Which one of the following is false?

(a) Section 301 of the Labor Management Relations Act creates exceptions to the broad anti-injunction provisions of the Norris-LaGuardia Act.

(b) A state law claim for relief is preempted by Section 301 if the facts underlying the state claim are the same as the facts underlying a claim under a collective bargaining agreement.

(d) Federal law applies in all Section 301 cases regardless of whether the case is heard in state or federal court.

3. Which one of the following is a “per se” violation of the obligation to bargain in good faith under Section 8(a)(5)?

(a) Insisting to impasse on a mandatory subject of bargaining.

(b) Insisting to impasse on having unilateral control over one or more mandatory subjects of bargaining.

(d) Unilaterally deciding to close part or all of a business.

4. Which one of the following is false is false with respect to enforcement of internal union rules?

(a) A union may expel a member and seek the individual’s termination from employment pursuant to a union security agreement that requires membership as a condition of employment.

(b) A union may expel a member and prohibit the individual from participating in the internal affairs of the union.

(c) A union may expel a member and prohibit the individual from participating in such activities as voting on a proposed collective bargaining agreement.

(d) A union may expel and levy a court-collectible fine on a member.

5. A veterinarian and a taxidermist went into business together. What did they name their business?

(a) Smith & Wesson.

(b) Barnes & Noble.

(d) Either Way You Get Your Pet Back. L

(Sorry – I ran out of time and had to recycle question 5 from a prior exam.)