Unions and Their Members Notes from 9-7-10

Recap: Last week we started to wade into the preemption field. Did Garmin. If the
conduct that the state is attempt to regulate is conduct even arguably covered by
Section 7 or Section 8, then that will be in the primary jurisdiction of the NLRB.

NLRB has regional offices and their staffs that investigate.

Then we had Farmer with this mixed claim where Mr. Hill accused them of
intentional infliction of emotional distress among other charges. If it is a matter of
significant state concern, they will not preempt all state tort law just because it
happens in the context of a collective bargaining arrangement.
--Since it involves speech in the context of a dispute involving a labor union,
it may be actionable, but it will be a higher standard, this NY Times standard.
--Section caution by court: In making the remedy available, the Act has
established this collective bargaining process and the lynchpin of this process
is that union members can select representatives. So you can’t interfere with
that. You have this judicial limitation on damages even with allowing access
to state courts.

Carpenters and San Diego.

You have a Sears store located in a shopping center with a big parking lot
near a road. The union in this case is complaining about Sears hiring
contractors that are not part of the union. The carpenters want them to use
union contractors, so the carpenters decide to picket.
They want to put the picket as close to the doors as possible. Sears’ is
complaining that this is trespass. They said that they have to move their
pickets to the end of the parking lot. Originally Sears wins. So state says
that they will arrest for trespass if they do not move their pickets to the major
road/thoroughfare. Probably a sidewalk or something. Trying to slow people
down, and then they backup traffic.
Then the police show up and say stop or they direct people in, preventing the
leaflets being handed out and so forth.
Picketing is a Section 7 right. The right to engage in protected activity and
advance the goals by organizing. Not in Section 7, not in Section 8. They can
picket in front of the store. Take it to NLRB? End of inquiry it seems.
Go to the Supreme Court. Could try to put it under Garmin. Court then says
not preempted by federal law. The Supreme Court falls back on trespass and
distinguishes with what the Labor Board would do and what the state law
would do.
Labor board would be concerned with if you are picketing the right
person. Such as arguing illegal secondary activity.
State trespass laws, on the other hand, are interested in if you are
picking in the right location / if it is allowed.
 There really isn’t that independence as there was in Farmer of issues.
The dissent says that this is a form of speech. However, this is
confrontational / coercive speech. It is a weapon, if you will. So
Congress is able to regulate picketing differently than just regulating
speech. So picketing can be regulated. There is an agency scheme
(NLRB) to regulate the picketing under Section 7 and Section 8.
Again, NLRB will be more interested in the intent of the picketing
rather than the location of the picketing.
So state property law is allowed to tell them where to go. So basically
you have a deference/appreciation for state law. Courts will attempt to
defer to state law on issues that are established such as trespass.
The NLRA does not say what types of picketing are permissible.
Machinists’ Preemption (A particular brand of preemption named after this
Machinists case)
So you have the NLRB with its offices. You then have Wisconsin with its
Employment Relations Commission – we’ll call WERC.
States had choices over time. Wisconsin was one of the states that had a
commission before many states did and indeed the federal government with
the NLRA.
So a company (C for short here) has a CBA with the machinists (M for short
here).
37 1/2 hour work week
7 1/2 hour work days
Employer wanted to get back to a 40 hour work week
(Just for interest, the FLSA does not necessarily require paid lunch in
the 40 hour work week, teacher notes. FLSA requires overtime after
40.)
37 1/2 hour work week had been going on for about 17 years.
The parties bargain impassed.
Having reached impassed, the C implemented the previous CBA offer of 40
hours.
M called a union meeting and said don’t work anything beyond 37 1/2.
So everyone leaves after 7 1/2 unless paid overtime, which the C has
made clear no, you just work 40. So there is a binding resolution. If
you don’t honor that, then you can get fined. They may fine you by
the amount extra you work. Internal disciplinary procedures.
So everyone leaves after 7 1/2 hours. The employer does not
discipline anybody for that. They can’t suspend their work force.
That’s the same thing as causing a strike. You’re trying to keep them
there for 8 hours, not keep them out. The economic weapons are
ineffective.
C presses charges with the NLRB, looks at the NLRA, and sees nothing
in there, so they say that it is dismissed. So C goes to WERC.
 WERC says cease and desist. We can implement state law. The WI court of
appeals and WI Supreme Court says that’s okay. And then the US Supreme
Court.
An intermittent strike is a weapon that keeps the employer guessing.
That was the issue in Briggs. That wasn’t addressed in the NLRA. That
previously was appealed to the Supreme Court and the Supreme Court
allowed that state preemption at that time. In Morton, though, there
was an Ohio law where they said that the state could not weigh in on
one side or the other.
Garmin is the bright-line rule on the front end where Section 7 and
Section 8 are considered where if fired for being in a union, reinstated
and back pay.
Congress ratifies and approves this collective bargaining process and
these weapons that are available. But what happens if you let
Wisconsin regulate this conduct? It gets inconsistent across states. A
national, uniform labor policy. NLRA is a statement of national labor
policy.
So what the courts are doing is finding out where to accommodate
state law.
So the state can’t weigh in on Garmin and it can’t weigh in on things
that Congress intended to not regulate and to let the parties fight it
out.
Brown v. Hotel Restaurant Employees
HERE is the acronym for the Hotel Restaurant Employees.
Casinos will be abbreviated (“C”).
HERE and C are forming a CBA.
In this case, NJ is looking to regulate.
There must be registered officials.
And these officials cannot serve if they have been convicted of some
enumerated crimes.
Based on this, we can figure out that there were likely some staff in the
HERE that were convicted of some of the enumerated crimes.
NJ says that if these requirements are not met, then there are no dues.
The court of appeals here says that the NLRB is preempted. So here we have
a pretty plain requirement under Section 7 of the Act. How does the court
parse that to get around that.
The court looked at Hill v. Florida.
1) BA Register
2) Good moral character
3) 10 years of experience in the industry
4) Some other one on the board I can’t read
So does the Congress regulate here? They regulated certain crimes.
 So what does NLRDA say? This is an area where the state is allowed to
participate in regulation. The types of laws that tried to clear up the
docks. Where the states couldn’t regulate the docks.
So the Supreme Court makes a distinction. It distinguishes the case.
Hill was talking about “good moral character” versus just having
enumerated crimes. It won’t compromise the employee’s actual right
to select a representative.
However, this dues issue it remands to the lower court to determine if
it would incapacitate the union. What Justice White, Powell and
Stevens said that it shouldn’t have to be remanded.
Suppose that the New Jersey regulation just says that the officials cannot
have a criminal record as from earlier and then there are 10 years of casino
experience required so that people can see if you complied with the rules.
Probably couldn’t do the 10 years one because Congress hadn’t said
anything about this versus when it talked about crime.
This would start to get into managing union organizing. Though you
may be able to article a reason, you have substantially limited the
persons who could be staff members.
The state basically needs to show that they are trying to manage the
industry and not the union.
Another example of something that would be substantially impacting
the union’s ability to impact its employees and thus not allowed would
be saying that all casinos and the unions have to allow the public in on
their meetings and show the minutes. Would hurt ability to plan
strategy.
Local 24 is forming a CBA with the Carrier Association (trucking companies)
The CBA here addresses wages, hours, working conditions, and something
else that gets a teamster member named Mr. Oliver all wound up who is also
a trucking owner/operator.
Oliver (O), Carrier Association (CA), Local 24 (24).
The CBA contains a rental rate that must be paid to the owners/operators
(O/O).
The union would want this rental rate to be as low as possible to benefit the
members. You are going to try to put O/O where the rental rate equals the
wages at least plus the operating costs, if you are 24. And 24 would want to
limit the amount of O/Os.
If you are CA, the lower the rental rate, the more competitive O/O’s get
against your regular drivers. In an ideal world for CA, the O/O’s would be
outside the CBA.
O is complaining about this deal as price fixing. Again, 24 wants to see its
guys competitive with O/Os, who are more competitive with lower rental
rates. CA wants to be able to use the lower priced O/Os outside the CBA to
make itself more competitive.
 Federal antitrust laws make unions exempt. So go to the state antitrust
laws. So then the question becomes if the Ohio state law is preempted.
And the court says: It’s preempted. it is preempted because it is about
wages, not price fixing. The O/Os would be interfering with the agreement
that the parties have reached. So the state law is preempted because
Congress ratified a process, not the list of things that must go on during a
CBA.
States are not allowed to intervene with this process. Can’t call this wage
agreement price fixing in Ohio when it might not be in Illinois. So state is
pushed out of this attempt to regulate.
A Massachusetts case about a mental health benefit basically mandating a health
benefit
So there has to be a mental health benefit within health benefits.
Why would Massachusetts pass such a law? To ensure that individuals in the
state get all of the care that they need and prevent costs with preventative
measures. So did insurance companies provide insurance benefits
commensurate with mental health problems? Probably not before the law.
Then the state has to care for people.
So you have this mandated benefit.
So then you have MET LIFE that is located in NY and CT. They sell insurance
in MA. What is the gambit that they play for why they (MET LIFE) cannot be
required to do this?
First shot is preempted by ERISA. Fails. Specific ERISA exemption for
insurance and pension industry. So there is specific state regulation of
insurance.
So MET LIFE then makes an interesting argument that requiring them
to include mental health benefits as mandated policies would require
them to interfere with the CBAs negotiated by employers and unions.
Usually those CBAs have wages, hours and benefits. One of them is
likely to be insurance. So now they have to include mental health
benefits in the CBA.
A weak argument. MET LIFE is saying that the union is has to
bargain for the mental health benefits under the FLSA.
Doesn’t make sense to try to get in the way of benefits. Adding
benefits, sure.
Halifax case and Montana case next time.