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 this room or in the designated typing room. 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.

In August 1985, United Food and Commercial Workers Local P-9 (Local P-9) began an economic strike in order to compel Hormel to agree to a favorable contract for bargaining unit employees at its Austin, Minnesota facility. In support of the same objective, Local P-9 sought to put pressure on First Bank System, Inc., a bank holding company, and several of its constituent banks, including First Bank Minneapolis and First Bank Austin. Local P-9’s stated reasons for targeting "First Banks" were that "First Banks" were "the money behind the company [Hormel]"; Hormel and "First Banks" had "interlocking directorships"; and "First Banks" were the single largest shareholders in Hormel.

The actual facts proved at trial were somewhat different from what Local P-9 contended. The evidence established that First Bank Minneapolis and First Bank Austin provided normal banking services to Hormel. Dick Knowlton, chairman, chief executive officer and president of Hormel, was a member of the Board of Directors of First Bank Minneapolis and First Bank Austin. DeWalt Ankenny was president and chief executive officer of First Bank System, Inc., a director of First Bank Minneapolis, and a member of the Board of Directors of Hormel. First Bank Systems, Inc., First Bank Minneapolis and First Bank Austin did not own any shares of Hormel. However, pension funds managed by the two banks for the benefit of Hormel employees did own such shares.

The Hormel video shown in class depicted hundreds of members of Local P-9 and their supporters loudly demonstrating at the offices of First Bank Minneapolis in downtown Minneapolis. The demonstrators held signs and chanted slogans indicating in substance that Hormel and "First Banks" were unfair to bargaining unit employees who worked at Hormel’s plant in Austin, Minnesota. During the course of the demonstration, the president of Local P-9 was quoted as saying that the public could help Local P-9 by withdrawing their funds from "First Banks." The "unfair" and "withdraw funds" messages were similarly contained in handbills distributed by the demonstrators.

1. Briefly explain whether Local P-9’s conduct as described above falls within the literal protection of Sections 7 and 8(a)(1) of the Act. (10 points)
2. Identify two defenses Hormel would likely assert in contending that Local P-9’s conduct is nonetheless unprotected. (10 points)
3. On what basis would you expect Local P-9 to argue that the demonstration is conduct protected by the First Amendment? (10 points)
4. Local P-9’s demonstration could be heard in offices throughout downtown Minneapolis. Assume that the City of Minneapolis has a noise ordinance that would apply in this situation. Could a state court, consistent with the First Amendment, enforce the ordinance? Would such a suit be preempted by the federal labor laws? (10 points)
5. Assume that Hormel contends that Local P-9 is engaged in a secondary boycott prohibited by Section 8(b)(4)(ii)(B) of the NLRA. Assume further that Local P-9 defends on the grounds that its object is to force "First Banks" to exert influence over Hormel to resolve the labor dispute in a manner favorable to Local P-9; that this objective could not be achieved if "First Banks" ceased doing business with Hormel; and that its conduct therefore did not have a "cease doing business object." Identify two arguments that you would you expect Hormel to make in response. (10 points)
6. Assume that Local P-9 also defends on the ground that Hormel and "First Banks" are so "allied" with each other that it (Local P-9) can lawfully exert economic pressure on "First Banks." How would you expect Hormel to respond? (10 points)
7. Assume that Local P-9 communicated its "unfair" and "withdraw funds" messages solely through handbilling and other non-picketing publicity. Would such conduct violate Section 8(b)(4)(ii)(B)? Why does it matter whether the identical message is conveyed by picketing or non-picketing publicity? (10 points)

(30 points - One hour)

1. In NLRB v. J. Weingarten, Inc., which is briefly noted in the casebook at pages 507-509, the United States Supreme Court concluded that an employer violated Section 8(a)(1) when it refused an employee’s request for the assistance of a union representative during an investigatory interview that the employee reasonably believed could lead to disciplinary action.

1. In a Weingarten case, the employee acts alone when asking for the presence of a union representative and is therefore literally engaged in "individual" activity. On what basis can it be argued that such activity is nonetheless "concerted" activity within the meaning of Section 7? (5 points)
2. On what basis is the request for "mutual aid or protection" within the meaning of the same section? (5 points)
3. Weingarten involved a request for the assistance of a union representative during an investigatory interview by an employee who was represented by a union. On what basis could it be argued that the same result should obtain if an unrepresented employee were to ask for the assistance of a fellow employee in similar circumstances? (5 points)
4. What is the principle of "exclusive representation?" Can this principle be used to construct an argument in opposition to the argument in (c) above? (5 points)

2. In Budd Mfg. Co. (casebook p. 221), the Third Circuit Court of Appeals stated that "If ever a workman deserved summary discharge it was [alleged discriminatee Weigand]." The Court nonetheless affirmed the National Labor Relations Board’s order requiring the company to reinstate Weigand and make him whole for losses suffered as a result of his discharge.

1. What purpose is served by a reinstatement and make whole remedy? Is that purpose promoted in the circumstances of a case like Budd Mfg. Co.? (5 points)
2. Assume that Weigand accepts the company’s offer of reinstatement; that thereafter he openly supports the union and actively recruits other employees to do likewise; and that he also reverts to his former work habits. Does the company have any recourse? (5 points)

3. Assume that an employer and a union have had a long-standing collective bargaining relationship. During negotiations for a new collective bargaining agreement, the union proposes, and the employer agrees, to drastically reduce health insurance coverage for retired employees in exchange for an increase in the number of vacation days for active employees. What is the duty of fair representation? Would the union’s conduct as described above breach that duty? (10 points)

(10 points - 15 minutes)

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