Final Exam

Labor Law - Spring 1999

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 (NLRA) 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

(70 points - 1 hour and 45 minutes)

1. The Employer and the Union were parties to a collective bargaining agreement that expired on March 31. The agreement provided in part that employees would be laid off and recalled in order of seniority. The parties reached an impasse in negotiations and all 11 of the bargaining unit employees went on strike on April 1. The Employer then hired six permanent replacements and continued to operate the plant using the replacements and supervisors. On May 1, the Union, on behalf of all of the striking employees, offered unconditionally to return to work. An office clerical employee sympathetic to the striking employees furnishes the Union with a copy of a confidential memo written by the Employer’s president. The memo instructs the Employer’s human resources manager to not reinstate the five most active strikers. By coincidence, the five are the least senior employees.

(a) Assume that the human resources manager complies with the president’s instructions. Do the facts satisfy the elements of a Section 8(a)(3) violation? (For exam purposes you may assume that the memo would be admissible evidence.) On what basis would you expect the Employer to defend? (10 points)

(b) Assume that the human resources manager refuses to carry out the president’s instruction and is discharged for this refusal. Do the facts satisfy the elements of a Section 8(a)(1) violation? On what basis would you expect the Employer to defend? (10 points)

2. The Company employs 300 bargaining unit employees. The collective bargaining agreement between the Company and the Union expired on January 31. The following day, 280 of the 300 unit employees went on strike. During the strike, 30 employees crossed the picket line and returned to work. In addition, the Company hired 100 replacements. Thus, as of March 1, the Company employed 150 employees in bargaining unit positions. On that day, the Union made an unconditional offer to return to work on behalf of all striking employees. The Company responded that because of changes in operations that had occurred during the strike, it now needed a total of only 200 bargaining unit employees; and that therefore it had openings for only 50 strikers to return to work. Assume that the Union has retained you as its counsel.

(a) The Union has asked you to advise it concerning the reinstatement rights of the 150 employees who were still on strike as of March 1. Briefly explain what additional information you need before you can provide the appropriate advice to the Union and why you need it. (10 points)

(b) The Union has asked you to advise it concerning what, if any, steps it can take to punish the 20 employees who refused to strike and the 30 employees who abandoned the strike and returned to work. Briefly explain what additional information you need before you can provide the appropriate advice to the Union and why you need it. (10 points)

(c) The Union has asked you whether it should file charges with the National Labor Relations Board concerning the operational changes the Company implemented during the strike that resulted in the elimination of 100 bargaining unit positions. Briefly explain what additional information you need before you can provide the appropriate advice to the Union and why you need it. (10 points)

3. Several of the Employer’s employees have been arrested for drug trafficking. In response, the Employer has introduced a random drug-testing policy. Assume that the Employer’s employees are not represented by a labor organization and that the policy is consistent with state and federal law. Several of the Employer’s employees have joined a local organization that opposes random drug-testing. The organization supports a city council candidate who has promised to introduce an ordinance banning random drug-testing if elected to office. One of the employees has been distributing the candidate’s flyers on the Employer’s premises before and after work and during breaks. On several occasions, the Employer advised the employee that solicitation and distribution are prohibited at all times on the Employer’s premises. The Employer also warned the employee that she would be subject to discharge if she continued distributing the flyers. The employee nonetheless persisted and the Employer finally terminated her for violating the no-solicitation and distribution policy. Identify one or more arguments the employee would advance in support of the contention that the discharge violates Section 8(a)(1) of the NLRA. Identify one or more arguments that the Employer would advance in response. (10 points)

4. A union is on strike against a manufacturer of grocery bags. The union is picketing at a local convenience store that uses the bags. Utilize the policy objectives underlying Congress’ prohibition of “secondary boycotts” and/or relevant case law to determine whether the union can lawfully picket with signs requesting that consumers not purchase groceries from the convenience store in bags manufactured by the struck company. Would your answer be the same or different if the identical message were conveyed in handbills? (10 points)

Part II - The Underlying Theory

(30 points - 1 hour)

1. At a number of points and in a variety of contexts during the course we have seen the application of the “presumption” that people intend the reasonably foreseeable consequences of their conduct. Briefly explain why this presumption is so frequently used in labor law (and, indeed, in other areas of law as well). Identify at least two labor law contexts in which the presumption is used and briefly explain how it is used in those contexts. (10 points)

2. One of the fundamental underpinnings of the NLRA is the principle of “exclusive representation.” Briefly explain what that principle is and why it is so important. The “duty of fair representation” can be viewed as a corollary of the principle of exclusive representation. Explain what the duty of fair representation is and how it relates to the principle of exclusive representation. (10 points)

3. In Gissel Packing Co. (casebook p. 146), the United States Supreme Court concluded that Section 8(c) of the NLRA does not protect employer speech that constitutes a threat of retaliation or a promise of benefits. In Denver Building Trades (casebook page 615), the Court concluded that Section 8(c) has “no significant application” to the union speech involved in that case. In neither case did the Court offer a sustained or reasoned explanation for its conclusion. Is it possible to draw upon traditional free speech principles and provide a plausible explanation? (10 points)

Part III - Extra Credit

(10 points - 15 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 employer’s premises?

(a) The nature of the workplace.

(b) The remoteness of the workplace.

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

2. 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.

3. Which one of the following is false?

(a) As a remedy for a party’s unlawful refusal to bargain in good faith concerning a particular subject, the National Labor Relations Board can order that party to accept the other party’s proposal concerning that subject.

(b) An inference of subjective bad faith in collective bargaining can be based on objective conduct.

(c) An inference of subjective bad faith in collective bargaining generally cannot be predicated on a party’s resort to economic force.

(d) An inference of subjective bad faith in collective bargaining generally cannot be predicated on a party’s refusal to agree to a particular proposal.

4. Which one of the following has not been advanced by the United States Supreme Court as a basis for denying full protection to picketing under “Freedom of Speech” clause of the First Amendment or its statutory equivalent, Section 8(c) of the NLRA?

(a) Picketing involves conduct and is therefore more than just speech.

(b) Picketing is a mere signal or directive, and in that sense is devoid of communicative content.

(d) Picketing is by its very nature coercive. Coercive speech is one of the traditional “categories” of speech that are not protected by the First Amendment.

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