Representation Elections Explained

71
4Representation Elections Under the National Labor
Relations Act
Robert Churchill/iStock/Thinkstock
Learning Objectives
After completing this chapter, you should be able to:
• Evaluate the steps of union formation under the National
Labor Relations Act.
• Analyze employers’ use of unfair labor practices such as
coercion, interrogation, and surveillance.
• Assess employers’ use of unfair labor practices such as
regulating solicitation, relocating the workplace, and
holding captive audience meetings.
• Examine union activities that may invalidate union
representation elections, the process by which the work-
force votes for or against union representation in the workplace.
• Summarize the ways in which labor relations consultants may
assist employers in the union representation
election process to determine if workers wish to be represented
by a union.
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Section 4.1 How Unions Are Formed Under the NLRA
Introduction
This chapter and the next offer a detailed explanation of the
National Labor Relations Act
(NLRA), the federal law initially enacted in 1935 that first
granted workers the right to form
a labor union. We will examine how to form a union and
achieve recognition pursuant to the
act. Then we will study how employers sometimes violate the
act and examine ways employ-
ers can stay within the parameters of the law.
Much of this chapter will refer to elections under the NLRA.
Elections refer to the process in
which workers vote at their workplace to determine whether
they wish to be represented
by a union; other ways to refer to this process include
representation elections or the elec-
tion process.
4.1 How Unions Are Formed Under the NLRA
This section discusses how a labor union is formed in a private
business under the National
Labor Relations Act. We will begin by covering who is
qualified to start the unionization pro-
cess and then examine how the petition is actually filed with the
National Labor Relations
Board (NLRB), the administrative agency entrusted with
overseeing representation elections
and resolving labor disputes under the act. Defining who is an
employee is an important first
step to determining which workers are eligible to vote for union
representation.

Defining Employees
The first step in forming a union is to identify which members
of the working unit qualify to
participate in the representation election. Union formation is
limited to particular employ-
ees, which begs the question: Who is an employee? Generally,
employees are workers with
two characteristics: (a) they are compensated for their service to
the employer, and (b) the
way in which they carry out their duties is under the employer’s
control and direction.
Simply declaring a worker an employee does not make it so.
Nor is it necessarily obvious that
some people are employees at all. For example, football players
at Northwestern University
sought recognition as a bargaining unit, arguing that they were
employees of the university
since they received compensation in the form of scholarships
and worked as athletes under
the supervision of a coach. Ultimately, the National Labor
Relations Board heard their case,
more details of which can be found in the In the News feature
box titled “Are Northwestern
Football Players Employees?”
In the News: Are Northwestern Football Players Employees?
Higher education is becoming a battleground for labor relations
decisions. Of note is the 2014
case concerning football players at Northwestern University,
who sought recognition from the
NLRB to form a union at their school.
(continued)

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As a general rule, an employee works for compensation under
the discretion of a supervi-
sor. However, the NLRA does not put forth such a definition.
Instead, the act lists categories
of workers who are not covered, referred to as exempt
employees. These categories include:
1. Government workers in state and federal offices, Federal
Reserve banks, and
employees subject to the Railway Labor Act. As we will discuss
in Chapter 7, which
covers public unions, government workers such as police and
firefighters are gov-
ernment employees, and as such are not under the jurisdiction of
the NLRA.
2. Agricultural laborers, such as farmers, including dairy
farmers and those who raise
livestock.
3. Domestic servants, including nannies and housekeepers.
4. A person employed by his or her parent or spouse.
5. Independent contractors, or workers usually hired for one
job, who are paid once;
have discretion over when, how, and where they do the work;
and are not covered by
the employer’s worker’s compensation, retirement, or tax
withholding.

6. Supervisors, or workers with “the authority to hire, transfer,
suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other
employees” (29 U.S.C.A.
§ 152[11]). Why are they exempt? One of the purposes of the
NLRA is to provide
The students argued that they met the two criteria of employees:
First, they “worked” for
the university because they received scholarships that paid for
their tuition, valued at some
$65,000 each per year; second, they were under the control of
their coaches, who told them
what to do, when to do it, and basically structured their days.
The case was first heard by the NLRB’s regional office. There,
the administrative law judge
found that those athletes who received scholarships qualified as
employees, which then made
them eligible to vote in the representation election (to determine
whether a union would rep-
resent them). The university appealed to the full NLRB in
Washington, D.C. They argued that
football players are not employees and therefore could not
legally form a union.
In the meantime, the football players were allowed to vote, but
because of the appeal, the bal-
lots were impounded until the case could be heard. At issue is
whether the NLRB will uphold
the decision of the regional office in allowing the football
players to be classified as employees,
and therefore eligible to form a bargaining unit leading to the
election process for union rep-
resentation (Strauss, 2014).

Discussion Questions
Watch this video (https://www.youtube.com/watch?v=a-
i8lOSb1Ck) and answer the follow-
ing questions.
1. Why were only scholarship players eligible for classification
as employees?
2. Why do you think that football players would want to form a
union? What issues do you
think they had with the university that necessitated this effort?
3. Why have the players’ votes been impounded until the
process is finished?
In the News: Are Northwestern Football Players Employees?
(continued)
sea81813_04_c04_071-096.indd 73 12/9/14 11:22 AM
https://www.youtube.com/watch?v=a-i8lOSb1Ck
workers with the ability to organize with other workers,
wielding them greater
power when they negotiate with management. Supervisors, on
the other hand,
already have power, and even if they are not the owner of the
business, they have
much more control over their work and the conditions of their
employment than
their subordinates. In short, because supervisors exercise
authority and independent

judgment, the act does not need to protect them in their dealings
with management.
In summary, although the NLRA does not define the
characteristics of an employee, it clearly
excludes particular types of workers from coverage, most
notably supervisors, government
workers, and independent contractors.
Forming a Community of Interest
Once it is established that the work-
ers in question are employees, it
must next be determined which of
those employees can form a bar-
gaining unit. A bargaining unit is
a group of employees who share a
common interest and therefore can
be identified as a discrete group. For
example, suppose a plant consists
of 4,000 workers, 150 of whom are
electricians. The electricians make
up a bargaining unit, because they
are an identifiable group within a
larger group of employees (see Fig-
ure 4.1).
Generally, to determine which
employees make up a bargaining
unit, the NLRB applies a commu-
nity of interest test that identi-
fies what commonalities the group
shares. For example, electricians
at the same plant have the same
type of job, and therefore form a
discrete work unit. Another con-
figuration is a plant unit, which

consists of all workers at the same
geographic location. For instance,
all of the workers at Plant #101 of Atlas Industries, regardless
of their position, make up a
plant unit. If Atlas was a large multinational company with
multiple plants, and all employees
from all of its plants wished to unionize, an employer unit
would be formed.
Figure 4.1: Illustration of a discrete
bargaining unit
Employees in a discrete bargaining unit have a common
interest, making them an identifiable group within the large
organization of employees.
The bargaining unit may be formed from some of the
workers in the factory.
The electrical workers form a discrete group of workers
with a commonality (or community) of interest.
The
Electrical
Workers
The
Electrical
Workers
All of the Workers
in the Factory

The bargaining unit may be formed from some of the
workers in the factory.
The electrical workers form a discrete group of workers
with a commonality (or community) of interest.
The
Electrical
Workers
The
Electrical
Workers
All of the Workers
in the Factory
sea81813_04_c04_071-096.indd 74 12/9/14 11:22 AM
Signing Authorization Cards
After the bargaining unit is identified, the next step is to
determine if there is sufficient
support to form a union within that unit. This can be
accomplished informally as employ-
ees talk with one another and gauge the level of support.
However, when the employees
decide that they want to move forward, each worker must sign
an authorization card
stating that they are willing to join the union. A sample
authorization card is shown in

Figure 4.2.
If the prospective unit can garner at least 30% of all
bargaining unit workers’ support (as demonstrated by
the number of signed authorization cards), the workers
can then file a petition with the NLRB asking for repre-
sentation by the union of their choice.
Watch This
To watch an employee submitting authori-
zation cards to his local NLRB office prior
to the union representation election pro-
cess, visit https://www.youtube.com
/watch?v=9XDZIKHSgS8
In the News: Micro Units May Be the New Bargaining Units
The case Specialty Healthcare and Rehabilitation Center of
Mobile is a good example of
whether employees correctly constituted a bargaining unit. In
order to form a union in a
workplace, employees must show that their bargaining unit has
a commonality of inter-
est. This court decision allowed workers to form much smaller
units, dubbed micro units,
rather than bargaining units. What sets micro units apart is that
they are composed of a
much smaller defined group, which makes it easier to form a
union since there are fewer
workers to organize.
The NLRB has “wide discretion” in determining which workers
should be included in a bar-
gaining unit, and courts reviewing the decisions of the NLRB
must uphold the board’s deci-

sion “unless the employer establishes that it is arbitrary,
unreasonable or an abuse of dis-
cretion” (Specialty Healthcare and Rehabilitation Center of
Mobile, 2011). “By organizing a
small group of workers, a union can gain a foothold within a
company’s workforce, as well as
access to company information during contract negotiations that
can give it leverage and make
subsequent organizing campaigns easier” (Specialty Healthcare
and Rehabilitation Center of
Mobile, 2011).
1. Can you think of a reason the NLRB would support allowing
smaller groups of workers
to form a bargaining unit?
2. Does recognizing smaller units help workers or the employer?
Explain.
3. How small a unit would you advise the NLRB to allow? What
is your justification for the
number you came up with?
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https://www.youtube.com/watch?v=9XDZIKHSgS8
https://www.youtube.com/watch?v=9XDZIKHSgS8
Filing the Petition With the NLRB
Following the submission of the authorization cards, a petition
must be filed with the regional

office. The employees or the union typically do this, but in
some cases employers may also file
a petition to determine how widespread support is within the
operation.
What are the chances of actually forming a union once a
petition is filed with the NLRB? Fig-
ure 4.3 shows how few unions actually emerge after the
authorization cards are submitted
and the petition is filed with the NLRB.
Figure 4.2: Authorization for representation card
Workers must sign an authorization card if they support the
identified bargaining unit and would like
them to become the employees’ representative in collective
bargaining and negotiation.
NLRB, Representation Petitions, RC (2014).
Name Date Hired
Telephone
State
Dept. Salary
Zip
Address
City
Name of Company

Kind of Work
Date
Print
Your Signature
This card is strictly confidential. Please remove tape and seal.
AUTHORIZATION FOR REPRESENTATION
I hereby authorize Teamsters Union Local No. 315, I.B.T.,
under the National Labor
Relation Act, I, to be my exclusive collective bargaining
representative in negotiations
for better wages and working conditions.
SAM
PLEEPLEMPLAMPSSAMSA
D
Telephone
e
Company
Work
E
tative in
Name Date Hired

Telephone
State
Dept. Salary
Zip
Address
City
Name of Company
Kind of Work
Date
Print
Your Signature
This card is strictly confidential. Please remove tape and seal.
AUTHORIZATION FOR REPRESENTATION
I hereby authorize Teamsters Union Local No. 315, I.B.T.,
under the National Labor
Relation Act, I, to be my exclusive collective bargaining
representative in negotiations
for better wages and working conditions.
SAM
PLEEPLEMPLAMPSSAMSA
D

Telephone
e
Company
Work
E
tative in
sea81813_04_c04_071-096.indd 76 12/9/14 11:22 AM
This figure shows in red the number of petitions that were filed
each year from 2004 to 2013.
This number is then compared to the blue lines that show how
many union representation
elections were actually held compared with the number of
petitions filed. Of the petitions
filed that resulted in a union representation election, the green
bars show in how many union
representation elections the workers voted for a union to
represent them in the workplace,
compared to the beige bars, which represent the number of
times workers voted against hav-
ing a union represent them. Perhaps most interesting is the pink
bar that depicts the number
of petitions withdrawn after being filed. There are many reasons
for a withdrawal, including
workers’ demands being granted by the employer, an error in
the petition, or a loss of support

that prompts the union to try for recognition at a different time.
Table 4.1 shows what happened to petitions filed between 2004
and 2013. In 2004, 141 peti-
tions were filed, and of those, 60 were withdrawn. Only 37 out
of the 141 actually resulted
in an election, and of the 141 petitions filed, the union won only
12, or about 8.5%. Based on
these figures, one could deduce that from an employer’s point
of view, the odds of union rep-
resentation actually transpiring from a filing are low.
Figure 4.3: Actual unions formed after filing a petition
This figure shows the number of unions formed (or not formed)
after a petition was filed for the
years 2004–2013. Even after a petition is filed, some groups
decide to withdraw petitions, an event
that happens for different reasons.
NLRB, Representation Petitions, RC (2014).
FY04 FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 FY13
0
1,000
2,000
3,000
4,000
5,000
Petitions Filed

Petitions Dismissed Petitions Withdrawn
Elections Held Won by Union Lost by Union
FY04 FY05 FY06 FY07 FY08 FY09 FY10 FY11 FY12 FY13
0
1,000
2,000
3,000
4,000
5,000
Petitions Filed
Petitions Dismissed Petitions Withdrawn
Elections Held Won by Union Lost by Union
sea81813_04_c04_071-096.indd 77 12/9/14 11:23 AM
Table 4.1: Petitions filed with the NLRB, 2004–2013
Year
Petitions
filed Elections
Won by
union

Lost by
union
Petitions
dismissed
Petitions
withdrawn
FY2004 141 37 12 25 37 60
FY2005 102 52 17 35 18 43
FY2006 108 37 11 26 18 54
FY2007 92 23 7 16 21 43
FY2008 150 25 6 19 30 101
FY2009 75 16 7 9 30 20
FY2010 67 13 5 8 27 22
FY2011 97 60 11 49 16 25
FY2012 31 14 6 8 13 19
FY2013 49 13 5 8 3 27
In addition to employees and employers filing a petition,
there are certain circumstances in which labor organi-
zations may also file. This can occur when the employer
does not recognize the union or if the employer recog-
nizes the union but seeks to go through the formal peti-
tion route so it can obtain the benefits of certification.

The NLRB Investigation
The NLRB next determines whether
30% of employees in the bargaining
unit have submitted their cards. To do
this it uses the employers’ payroll list,
also known as the Excelsior list, which
contains the names and addresses of
current employees and therefore all of
the persons eligible to vote in the rep-
resentation election. The authorization
cards are compared against the Excel-
sior list, and if 30% support is reached,
the NLRB will accept the petition from
the union. When the petition is filed,
the NLRB notifies all parties involved.
At this point in the process, the regional
office will request any additional infor-
mation, if needed.
Watch This
To watch Calpine workers file with the
NLRB, visit https://www.youtube.com
/watch?v=OfPZiYKVMno
Jae C. Hong/Associated Press
Facilitating fair union elections is one of the NLRB’s
main goals.
sea81813_04_c04_071-096.indd 78 12/9/14 11:23 AM
https://www.youtube.com/watch?v=OfPZiYKVMno
https://www.youtube.com/watch?v=OfPZiYKVMno

When all parties are informed that a petition has been filed, the
regional office will conduct
an investigation to make sure the NLRB has jurisdiction and
whether the petition is in order.
Most of the investigative work is done via telephone and e-mail.
The agents will work out the
logistics for the election, which includes where the balloting
will take place, the language that
will be used on the ballots, and how it will be determined who
is eligible to vote (NLRB, n.d.a).
Once the parties arrive at an understanding about how the union
representation election pro-
cess will take place, the regional director is authorized to
conduct the election.
If the parties have issues with the election or there are problems
with the petition, however,
then there might be matters to resolve before an election can
take place. In that event the
entire proceeding stops as the issues are heard (in a hearing) at
the regional level and, if
needed, the national level. The most common issue typically
regards the description of the
bargaining unit in the petition. For example, if the status of
individuals in the bargaining unit
changed due to a personnel action, then the description is
inaccurate. This could happen if
an employee designated as a supervisor is reclassified as
nonsupervisory or if employees are
transferred out of the bargaining unit (FLRA, n.d.c.).
Hearings before the NLRB are similar to civil trials, except
without a jury. The hearing officer

is an employee of the NLRB, and attorneys for both sides
present their cases through wit-
nesses, as in a court case. Witnesses are examined and cross-
examined so that evidence can
be presented. At the conclusion of a regional hearing, the
hearing officer will not rule on the
matter, but instead will write a report to the board, which
ultimately makes the decision.
Once these issues are raised and resolved, the election can
proceed. There are situations in
which a hearing is not necessary—for example, if the petition is
withdrawn for lack of sup-
port, inadequacy, lack of jurisdiction, or an inadequate showing
of interest. Likewise, a hear-
ing does not take place if the regional director dismisses the
petition.
The Voting Process
Fair and non-coercive union elections are at the heart of the
NLRB’s mission. If workers can
vote to unionize without fear of reprisals, job loss, or physical
harm, then the NLRB has suc-
cessfully created an atmosphere conducive to a fair outcome.
The rules governing union elec-
tions have evolved over time and are partly the result of past
eras in which corruption and
violence occurred. For this reason, the rules and regulations
governing the electoral process
may seem overly complicated, but their purpose is to create a
noncoercive atmosphere in
which to hold elections.
The NLRB provides written notice of election-related events;
these are posted around the
employer’s place of business explaining the details of the

election. These posters tell workers
that a representation election is to be held and that they have
the right to vote if they are part
of the bargaining unit. On the day of the election,
representatives from the NLRB arrive at the
place of business to supervise the election. They bring the
voting booth, ballot box, and pre-
printed ballots for the election and do the actual count, unless
the ballots are sealed.
As in the case with the Northwestern football players, ballots
are sometimes sealed or confis-
cated pending a hearing by the NLRB. If the NLRB rules, for
example, that the football players
were not correctly classified as employees, then their votes are
moot; on the other hand, if they
really are employees, then they have the right to vote, and their
ballots will be lawfully counted.
sea81813_04_c04_071-096.indd 79 12/9/14 11:23 AM
NLRB representatives also watch the voting area for any signs
of interference by either side
that may be coercive or a violation of the NLRA. They are
especially watchful for electioneer-
ing, in which representatives of any party engage in “prolonged
conversations with voters
waiting to cast their ballots, regardless of the content of the
conversation”(Milchem, 1968).
Under the Milchem rule, elections in which electioneering
occurs will be overturned. A pro-
portionate number of observers are allowed for each side,

depending on the total number of
employees in the business.
The election process is held via secret ballots. Election
outcomes are determined by the
majority of the employees in a unit, which means the majority
of employees who vote in the
election. NLRB representatives oversee all elections, and they
count and report the vote.
The NLRB then issues a certification: either one of
representation or one of results. A cer-
tification of results means that a majority of employees in the
bargaining unit did not vote
in favor of union representation. A certification of
representation means that a majority of
employees in the bargaining unit voted in favor of joining the
union and authorize the union
to represent them in negotiations with the employer.
Either side can object to the outcome of the election by filing an
objection with the regional
NLRB office within 7 days of certification, and the NLRB can
then investigate. If the election
is set aside, or invalidated, the NLRB can make arrangements
for a new election to take place.
If unionization prevails, it cannot be challenged for at least 1
year, meaning that another
union cannot claim that it now has a majority of workers;
otherwise the workplace would be
disrupted by constant elections.
At any point in the process, the employer can challenge (either
before the NLRB or in court)
any aspect of the election, from the accuracy of the
authorization cards to the determination

of what constitutes the bargaining unit. The NLRB was created
and is organized to hold hear-
ings on such issues and make rulings, much like a court. This
process will be discussed in
detail in Chapter 6.
Union Representation Without an Election
Sometimes a union is put in place without an actual election.
This may happen in a num-
ber of ways, such as a consent election in which the employer
agrees to the formation of
the union. At the other end of the spectrum are those
workplaces that are so polluted by
employer misconduct that a fair election becomes impossible. In
those cases the NLRB will
order the employer to recognize the union without an election.
Voluntary Recognition
One way that a union can represent workers without an election
is through a process called
voluntary recognition. If the union has the support of 50% or
more of employees from the
start (rather than 30%), the employer may avoid going through
the petitioning process (as
long as the proof of 50% support is valid) and instead allow a
consent election. In that case the
NLRB director conducts an election to ensure that a majority of
the employees in the bargain-
ing unit want to be represented by the particular union. For this
to happen, the employees must
approach the employer and inform him or her that a majority of
workers wish to unionize.
sea81813_04_c04_071-096.indd 80 12/9/14 11:23 AM

Upon learning this information, the employer is not obligated to
comply with the request
to unionize. If that happens, the workers have no choice but to
proceed with an election.
“Although unions may try to pressure the employer to recognize
their union without going
through the process of an election, this rarely happens. For
example, employees may use a
strike or picketing to apply such pressure. Unions will instead
usually use the route of a secret
ballot election. In most cases the union will seek a secret ballot
election conducted by the
NLRB” (Associated Builders and Contractors, n.d.). If,
however, the employer is willing to rec-
ognize the majority, then the employer will request proof that a
majority of workers support
the union, which is proven by a count of the authorization cards.
An employer may not wish to entertain voluntary recognition.
One reason is because pro-union
workers could pressure other workers into signing authorization
cards. Signed cards may indi-
cate that there is great support for union formation, but if
workers were to vote anonymously,
the outcome may be very different. Like political elections,
elections for whether to unionize
take place in a private booth so no one can see how each person
votes; authorization cards, on
the other hand, are not necessarily confidential. A second
reason is that voluntary recognition
does not result in certification of the union, whereas an election
does. A certified union enjoys a
year of presumptive support and cannot be challenged within

that year, whereas a noncertified
union can be decertified sooner than that.
Gissel Bargaining Order
Outside of voluntary recognition, electionless union
representation can take place by virtue
of a Gissel bargaining order. This order mandates that the
employer enter into a collective
bargaining agreement with the union even though the union has
not won an election. If the
employer commits unfair labor practices and the work
environment is not conducive to fair
elections, then the NLRB might take this extraordinary measure.
The employer must have
committed infractions so serious that it would be impossible to
hold a fair election.
The Union Becomes the Exclusive Bargaining Agent
Once the election is finalized by the NLRB, the union becomes
the employee representative
for the purpose of collective bargaining. This representation is
exclusive. This means that the
employer may not meet with factions of other employees who
do not support the union. All
employees will be covered by the collective bargaining
agreement determined by the union and management
as long as they are members of the bargaining unit,
even if they did not support unionization.
Sometimes a union does not act as the exclusive agent
for the workers following an election. This occurs when
the election is invalidated, or set aside. The NLRB will set
aside an election if it was conducted in “an atmosphere
of confusion or fear of reprisals and thus interfered with
the employees’ freedom of choice” (Pacific Micronesia,
2000). According to the Pacific Micronesia case, “In any

particular case, the NLRB does not attempt to deter-
mine whether the conduct actually interfered with the
employees’ expression of free choice, but rather asks
Watch This
Work in textile mills was hot, oppressive,
and paid little. In 1934 there was an upris-
ing at a mill that resulted in seven deaths.
To view a documentary about that event,
visit https://www.youtube.com
/watch?v=D_Sl9OTtUkU
To read about the making of the documen-
tary, visit http://www.ejumpcut.org
/archive/jc45.2002/whiteman
sea81813_04_c04_071-096.indd 81 12/9/14 11:23 AM
https://www.youtube.com/watch?v=D_Sl9OTtUkU
https://www.youtube.com/watch?v=D_Sl9OTtUkU
http://www.ejumpcut.org/archive/jc45.2002/whiteman
http://www.ejumpcut.org/archive/jc45.2002/whiteman
Section 4.2Unfair Labor Practices by Employers: Coercion,
Interrogation, and Surveillance
whether the conduct tended to do so. If it is reasonable to
believe that the conduct would tend
to interfere with the free expression of the employees’ choice,
the election may be set aside.”
4.2 Unfair Labor Practices by Employers: Coercion,

Election campaigns present a unique set of circumstances for
managers. Preelection actions
that interfere with the election process—even if unintended—
may violate the NLRA. If the
NLRB determines that violations occurred, it can rule that
another election must be held or
require the employer to bargain without an election.
This chapter will acquaint you with some of the laws governing
the election process, discuss
situations to avoid, and examine some of the rights that
managers have. However, when deal-
ing with a business undergoing unionization, it is essential to
hire a labor consultant and
solicit the advice of an experienced labor attorney who is
familiar with current NLRB rulings.
Any business that is experiencing a union campaign at its
workplace should hire a team of
experts for guidance.
When should that guidance begin? While workers may initiate
the idea of unionizing in dis-
cussions and meetings among themselves, it is not until they
sign authorization cards or begin
leafleting that employers know organizing is occurring. Once
aware, the astute manager must
view this event as a turning point and immediately make sure
his or her behavior complies
with the NLRA.
Employee Coercion
One reaction that managers have to the onset of union activity is
to discuss complaints with
their employees and try to remedy or otherwise address them.
Although this may be a natu-
ral response to employee dissatisfaction, the general rule under

Section 8(a)(1) of the NLRA
“prohibits employers from interfering with, restraining, or
coercing employees in exercising
their rights to” form a union. Coercing can take many forms.
One is that by bestowing ben-
efits on employees, the employer is coercing them into voting
against the union (Pacific Coast
M.S. Industries Co., 2010). Promises of more flexible
attendance policies, increased pay, retire-
ment, or a bonus all constitute violation of this section (Center
Service System Division, 2005).
Another response managers may have is to discuss work
conditions and complaints with
employees. This could be deemed another violation called a
solicitation of grievances. If
the employer has a history of approaching employees and asking
their opinions about work
conditions, it may not constitute a violation. But when the
solicitation is sought for the first
time immediately prior to a vote, it may be considered a form of
coercion (Caraustar Mill
Group, 2011).
The bottom line is that if the employer has a history of giving
benefits at a certain time each year,
and if this is a widely known and provable fact, then continuing
such benefits will not likely be
viewed as coercion; new benefits suddenly offered when a
campaign begins, however, are
highly suspect of violating the NLRA.
sea81813_04_c04_071-096.indd 82 12/9/14 11:23 AM

You Be the Judge: Interrupting Organizing Activity
In this case, Local Joint Executive Board of Las Vegas v. NLRB
(2008), the court considered whether
the actions of a human resources manager violated Section
8(a)(1) on unlawful surveillance. The
company involved operates a hotel and casino in Las Vegas,
Nevada. On May 30, 2000, the unions
began an open campaign to organize the casino’s housekeeping,
food, and beverage departments.
The company provides a dining room in which all employees,
supervisors, and managers can
eat. Two employees who worked as buffet servers were having
lunch together in the employee
dining room. The employees approached other buffet servers at
the table next to them and
asked them if they would like to sign union (authorization)
cards.
After observing the two employees approaching other buffet
workers, Tracy S., the company’s
vice president of human resources, who was also eating lunch in
the dining room, approached
the buffet servers. She interrupted the organizers and said to the
servers, “I would like to make
sure you have all of the facts before you sign that card.” Tracy
said they should understand that
the cards were “legal and binding,” and if the union ever
became the collective bargaining rep-
resentative, the “card authorizes union dues to start coming out
of [the card signer’s] paycheck.”
One of the union organizers assured Tracy that she had given
the buffet servers all the facts.

“There was then a brief conversation about union benefits,
including insurance, and Tracy
offered her opinion that even if the union organizing campaign
was successful, there was no
guarantee that the hotel employees would receive different
medical insurance” (Local Joint
Executive Board v. NLRB, 2008). “Tracy told the servers that
union dues were $32.50 a month”
(Local Joint Executive Board v. NLRB, 2008) and the union
organizer indicated that they had
already told the other servers about dues. Then Tracy said that
it “looked like the union orga-
nizer had all [her] bases covered” (Local Joint Executive Board
v. NLRB, 2008) and walked away.
Tracy typically ate lunch in the employee dining room, but
usually sat with other human
resources employees rather than uniformed employees like
buffet servers. She acknowledged
that as she approached the table to talk to the servers, she knew
they were talking about sign-
ing union cards. She further testified that she approached the
employees with the intention of
giving them “the facts.”
The case was first heard by a regional administrative law judge
who found that the statements
by the human resources supervisor were illegal surveillance in
violation of Section 8(a)(1).
The NLRB reversed. The union then appealed to this court.
1. What violations do you see? What specific NLRA statutes are
each of the violations under?

What do you think would be the result of a complaint about the
conduct with the NLRB?
2. What is the three-part test that the court will use to determine
whether or not surveil-
lance took place? (The three-part test is found in this chapter.)
3. If you owned this company, how would you address these
issues ahead of time with
your human resources personnel? What instructions would you
give them about speak-
ing to employees regarding union activity?
4. How do you think human resources personnel could be so
unaware of labor relations
rules during the pendency of a campaign?
HOLDING: The supervisor’s “brief, spontaneous interruptions
were not coercive” because
these were ruled as being “rational and consistent” with the
NLRA. “Applying its three-factor
test, the Board reasonably determined that where the duration of
the observation was short
and the employer’s behavior was not out of the ordinary,
verbally interrupting organizing
activity does not necessarily violate” the act (Local Joint
Executive Board v. NLRB, 2008).
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Interrogation

In addition to employee coercion, another common violation
committed by managers is
talking to their employees about an upcoming election. Under
the NLRA, discussions with
employees that become an interrogation violate the law. The
word “interrogation” may con-
jure images of a dark room in which a worker is asked probing
and accusatory questions, but
in reality, any interaction between a supervisor and an employee
may be characterized as an
interrogation if the discussion coerces that employee or makes
the employee feel threatened
in any way. Bear in mind that there is a power differential
between supervisors and workers
that alone may make conversations uncomfortable to workers;
add to that questions about
unionizing and the conversation becomes even more fraught
with the potential to be intimi-
dating to a worker.
The courts use four factors to determine whether a supervisor is
acting coercively toward
workers during a campaign to unionize. These are:
1. if the interrogator appears to be seeking information on
which to base taking action
against individual employees,
2. the interrogator’s level in the company hierarchy,
3. if the employee was called away from work into the boss’s
office or if a conversation
took place in an atmosphere of unnatural formality, and
4. the truthfulness of the employee’s reply (Bourne v. NLRB,
1964).

Statements to employees such as “If we got a union in here we’d
be in the unemployment
line” (Big Ridge Inc. and United Mine Workers of America,
2012) or “The union is no good,”
or implying that if the union wins, employees will lose benefits,
be paid less, or lose their
vacations (Portola Packaging, Inc. and Marta Magallon Corona,
2012) are examples of inter-
rogation. Another example is announcing to workers that voting
to unionize will cause the
business to close. It is also coercive to state that the employer is
being forced to spend large
amounts of money on attorneys’ fees defending against the
union’s unfair labor practice
allegations at a time when the employer is struggling to remain
open (North Star Steel Com-
pany, 2006).
Another example of interrogation involved a display by an
employer at the place of business.
In the case Eldorado Tool, 325 NLRB No. 16 Case 34-CA-6966-
1 (1997), an employer created
a wall of shame consisting of tombstones. On each tombstone he
put the name of a business
or plant that had shut down as a result of United Automobile
Workers (UAW) organizing.
Every day or two, he added a tombstone with the name of
another closed plant. On the day
before his employees voted on whether to unionize, he posted a
tombstone with the name of
his business (Eldorado) on it and a question mark in the middle
(Eldorado Tool, 1997). This
action was held to be a violation of Section 8(a)(1) because
the Respondent (Eldorado Tool) offered no explanation of the
basis for its

assertion that the UAW was to blame for the closings of the
other plants.
Nor did it offer any objective facts as the basis for a belief that,
for reasons
sea81813_04_c04_071-096.indd 84 12/9/14 11:23 AM
beyond its control, selection of the UAW as the employees’
bargaining rep-
resentative might well cause the Eldorado plant to suffer the
same fate. In
the absence of such an explanation, based on objective facts,
and noting par-
ticularly that top employer officials were otherwise threatening
closure, the
message conveyed to employees was not that economic realities
might lead
the plant to close, but that the Respondent might retaliate
against them and
close the plant merely because they chose union representation.
We there-
fore find that the “UAW Wall of Shame” campaign in the
context presented
here, constituted an unlawful threat of plant closure, in
violation of Section
8(a)(1). (Eldorado Tool, 1997)
Under certain circumstances, managers are allowed to express
their opposition to unioniza-
tion. Section 8(c) permits employers to express

“any views, arguments or opinions” concerning union
representation without
running afoul of Section 8(a)(1) of the Act if the expression
“contains no threat
of reprisal or force or promise of benefit.” The employer is also
free to express
opinions or make predictions, reasonably based in fact, about
the possible
effects of unionization on its company. In determining whether
questioned
statements are permissible . . . the statements must be
considered in the con-
text in which they were made and in view of the totality of the
employer’s
conduct. Also recognized must be the economically dependent
relationship
of the employees to the employer and the necessary tendency of
the former,
because of the relationship, to pick up intended implications of
the latter that
might be more readily dismissed by a more disinterested ear.
(National Pro-
pane Partners, 2002)
For example, a supervisor can say to employees, “I am against a
union and I think it is a bad
idea in this plant,” and then explain why based on factual
information. Supervisors can also
advise employees that they do not have to sign union
authorization cards or join a union.
Employees may be advised of what benefits they would receive
should a union represent
the employees (as opposed to what the employer offers), and
they may also be told that
if they go on an economic strike they may be replaced (National
Propane Partners, 2002).

Economic strikes, which are different from unfair labor practice
strikes, will be discussed
in Chapter 5.
In short, employers are allowed to discuss objective facts about
the consequences of union-
ization that are provable, but they must be wary of implying
that unionization will have dire
consequences that may not come to fruition. For this reason,
making factually based com-
parisons of quantifiable information (such as how pay and
benefits will be different with and
without unionization) are the least likely to violate the NLRA.
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Surveillance of Employees
Employers who think a union campaign is about to get
underway are generally curious about
their employees’ activities. One way to satisfy this curiosity is
through some sort of surveil-
lance, which may mean monitoring employee activity or having
others monitor and provide
reports. The employer might want to know, for example, how
many employees are genuinely
interested in forming a union and might ask supervisors to count
the numbers at a gathering.
Does such surveillance qualify as being coercive?
Surveillance concerns are complicated by other issues. These
include where the surveillance

takes place. For example, surveillance of employees on the
employer’s private property is dif-
ferent than surveillance of employees on public property such as
a park or mall, where they
might be holding a meeting. In addition, the surveillance of
employees is different from sur-
veillance of nonemployees such as union organizers, who might
stand outside the employer’s
gate and hand out materials to entering and exiting workers.
In response to these various scenarios, the NLRB “has
determined that management officials
may observe public union activity on company premises without
risking a violation” of Sec-
tion 8(a)(1) (Eddyleon Chocolate Co., 1991). Likewise, if
employees conduct “union activities
openly or near company premises, this observation by the
employer” has been held to be law-
ful (Roadway Package System, 1991).
However, sending representatives to union meetings, hiring a
private police force, and install-
ing surveillance equipment represent a violation of Section
8(a)(1) (Cogburn Health Cen-
ter, Inc., v. NLRB, 2006). In cases that are not so clear-cut, the
board takes into account how
long the employer observes employees, the proximity of the
employer to the employees, and
whether any of the observations are coercive (Intertape Polymer
Corp. and United Steel, Paper
& Forestry, Rubber, 2013).
Managers should not change their normal routines when union
activity begins. This means
that new types or areas of surveillance should not be
undertaken; nor should increased

surveillance take place. If the company has surveillance
cameras located at the gate that
are turned on between 3:00 a.m. and 9:00 a.m., for example,
then they should continue to
operate during those hours. If the cameras are pointed in a
certain direction, they should
not be adjusted to better monitor employee behaviors.
Employers should also refrain from
asking other employees or managers to report on the content of
meetings or the likelihood
of a union vote.
In the following case a company undergoing unionization
engaged in surveillance of its
employees. Note where the union activity takes place and,
putting yourself in the role of man-
agement, consider how you would respond if you were in charge
of the California Acrylic
business.
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You Be the Judge: Videotaping Employees
The case California Acrylic Industries, Inc. 322 NLRB No. 10
(1996) raised the question of how
much surveillance an employer may use. At the hearing before
the NLRB, an employee named
Camacho testified that he addressed a crowd of about 200
employees while they were hav-
ing lunch outside the employer’s facility. This was the first
mass meeting of bargaining unit

employees, which the union conducted outside of the plant.
Camacho said he spoke to the
employees in Spanish and English from the public sidewalk,
informing them of the filing of the
election petition, of their rights under the act, and of a union
meeting scheduled to be held at
a local church the next evening. He said that while he addressed
the employees, two manag-
ers walked out of the woodshop building “and they stood on the
sidewalk by the place where
I was talking to the employees and they stayed there . . . until I
finished” (California Acrylic
Industries, 1996). According to Camacho, when he finished
speaking, he walked over to the
managers, identified himself as an official of the union, said
that he did not want to have any
problems, and shook their hands. The managers then responded
that as long as the union
stayed off company property, there would be no problems
(California Acrylic Industries, 1996).
Following this incident, the company rented video cameras to
record meetings between its
employees and union representatives in front of the Pomona
plant.
The company also provided a security guard with a video
camera for the sole pur-
pose of recording the employees’ union activities. During lunch,
when union repre-
sentatives spoke to the employees, the security guard pointed
his video camera at
the group, thereby videotaping or creating the impression he
was videotaping their
activities. (California Acrylic Industries, 1996)

1. Does the union have a legal right for speakers to address
employees if the union mem-
ber is standing on public property?
2. Can the employer have the union member removed from
public property if the union
member is addressing the employer’s workers standing on
employer property?
3. At a minimum, what information could the managers have
elicited from the union
speaker that would be beneficial to the employer?
4. If the speech by the union representative is the first time that
management is aware of
union activity, what steps can it now take with regard to its
employees to try and avoid
unionization at this facility?
HOLDING: The NLRB found that the employer had rented
video cameras in order to record
meetings between its employees and representatives of the
union in front of the Pomona plant
and that
the employer provided a security guard . . . who had been
stationed on the grass area
in front of the woodchuck building for no conceivable purpose
other than to engage
in overt surveillance of such meetings, with one of the newly
rented video cameras to
videotape the employees’ aforementioned union activities.
Furthermore, pointing the
video camera at workers meeting in small groups who were

speaking of union orga-
nizing created an impression of surveilling protected concerted
activity. (California
Acrylic Industries, 1996)
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Section 4.3Unfair Labor Practices by Employers
4.3 Unfair Labor Practices by Employers: Regulating
Solicitation, Moving the Workplace, and Captive
Audience Meetings
This section will discuss three areas that are of particular
concern to managers. First, when
unions want to reach employees, they often hand out pamphlets
or brochures about their
organizations to employees near or around the workplace; this is
referred to as solicitation,
and there are many nuanced rules regarding when and where it
can take place. Then we
will look at businesses that react to unionization by moving
their plants to other countries
or places without a union presence. This reaction may be
deemed an unfair labor practice if
done for the wrong reasons.
Finally, we will look at captive audience meetings prior to
union votes. These are meetings
that employees are required to attend to hear about the union
from management’s perspec-
tive. Many regulations also exist around this activity. Overall,
these three scenarios present
many challenges for managers and are important to understand

in order to avoid liability.
Regulating Solicitation
The distribution of literature to employees is a form of
solicitation that is a commonplace occur-
rence during a union campaign. Suppose the union would like to
hold meetings and explain
its position on employment issues. In such a case the union may
choose to stand outside the
employer’s place of business and hand out literature to the
workers as they leave their shift.
If such leafleting is conducted by employees on the employer’s
property, then the general rule
is that employers may not restrict employees’ “right to discuss
self-organization among them-
selves unless the employer can demonstrate that a restriction is
necessary to maintain pro-
duction or discipline” (Lechmere, Inc. v. NLRB, 1992).
In the case of union officials handing out materials to workers
who enter and exit the plant, as
a general rule, employers may limit who comes on their
property for the purpose of distribut-
ing literature. This means that nonemployee organizers may be
prevented from coming onto
a company’s property (Lechmere, Inc. v. NLRB, 1992). The
employer may also put signs on the
property that say nonemployees may not distribute union
literature there.
There is an exception to this rule, however. If the union can
show that employees have no access
to the union’s information other than by union representatives
handing out literature at the
plant, then the union may be permitted to distribute leaflets.

Therefore, the employee’s right to
unionize might “in certain limited circumstances, restrict an
employer’s right to exclude non-
employee union organizers from his property” (Lechmere, Inc.
v. NLRB, 1992, at 532).
Sometimes employers allow third parties to enter their property
to distribute materials to
employees. For example, an employer might allow the Girl
Scouts to come into the plant and
sell cookies, the Red Cross to hold a blood drive, or the United
Way to solicit contributions.
Once an employer provides access to its private property to one
group but denies the same
access to a union, it is a violation of Section 8(a)(1).
Interestingly, even otherwise legal actions against employees
may sometimes constitute a
violation of the NLRA. Suppose preelection activity is taking
place at a company’s plant, which
sea81813_04_c04_071-096.indd 88 12/9/14 11:23 AM
it strongly opposes. The company learns that one of its
employees, who is a union advocate,
is also an undocumented alien. The company reports this
employee to the U.S. Immigration
and Naturalization Service, knowing that he will be deported
because of his illegal immi-
gration status. If the worker is deported, is that an unfair labor
practice under 8(a)(1)? The
NLRB ruled that this action was in violation of this section

because the employer reported the
employee “in retaliation for participating in union activities”
(Sure-Tan, Inc. v. NLRB, 1984).
Generally, soliciting other workers on company time and
premises is protected under Section 7,
which gives to employees the right to form a union, so long as it
does not interfere with the work
environment. Firing an employee for approaching fellow
workers to discuss union membership
on company time and company premises is not allowed under
the NLRA. Therefore, an employer
may be held liable for discharging an employee for such activity
(Frazier Indus. Co. Inc. v. NLRB,
2000). Firing an employee for asking a coworker about signing
a union card while they were
both at work, on the grounds that it violates the company’s no-
solicitation policy, is another
example of an unfair labor practice under this section, since it
discriminates against encouraging
or discouraging membership in any labor organization (Valmont
Industries, Inc. v. NLRB, 2001).
You Be the Judge: Disparate Treatment of Employees
Engaged in Union Activity
The following is based on the case Marshall Durbin Poultry
Company v. National Labor Rela-
tions Board (5th Cir. 39 F.3d 1312, 1995).
Garwood, Circuit Judge:
Chisholm, an employee “of the Company from July 1985 to July
1990, was an active Union sup-
porter. For six months prior to his discharge, Chisholm
participated in distributing handbills

on behalf of the Union and often talked to employees about
signing Union cards. Chisholm,
who is going blind, stated that over the years of his
employment, he often sat in the Company
break room in the cafeteria, or in a relative’s car in the company
parking lot waiting for his ride
home” (Marshall Durbin Poultry Company v. NLRB, 1995).
Shortly after Chisholm’s union activity began, a manager told
him that he could no longer sit in
the company cafeteria to wait for his ride home. Chisholm
testified, however, that other workers
who had finished working their shifts were allowed to remain in
these areas. He was given a for-
mal disciplinary write-up for sitting in the cafeteria after he got
off work. At a hearing before the
NLRB, a company manager admitted that he was told to “run off
pro union employees from the
break room (cafeteria) after work” (Marshall Durbin Poultry
Company v. NLRB, 1995).
1. Chisholm would be able to bring a lawsuit against the
company on the basis of discrimi-
nation in this case. What do you think would be the basis of his
discrimination lawsuit?
2. In terms of union activity, what did the company do wrong?
If the company had wanted
to clear the cafeteria, what could they have done that would not
have violated the law?
How should they have gone about doing it?
3. Do you think that the owners of this business need to train
their managers about violat-

ing labor and employment laws?
HOLDING: The NLRB found that Chisholm’s testimony
constituted “substantial evidence to
support the board’s conclusion that the company unlawfully
retaliated against Chisholm, con-
trary to Sections 8(a)(3) and (1), by excluding him from the
company premises and giving him
a disciplinary write-up” (Marshall Durbin Poultry Company v.
NLRB, 1995).
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Another aspect of solicitation can involve patches, pins, or
other symbols that employees
wear to show union support during an election campaign. It is
illegal to force employees to
remove pins, labels, hats with patches, or other markers of
union support. This holds for cases
in which symbols implicitly show support. For example,
suppose employees who support
the union decide to show their support by wearing green T-
shirts to work. If the employer
allows all of the employees who oppose the union to wear green
T-shirts but does not allow
the union employees to do so, then discrimination has occurred
along union lines. But if no
employees may wear a green T-shirt, whether they are for or
against the union, then the rule
is applied equally to all and is deemed nondiscriminatory. This
is true for solicitation as well.
As long as the employer has a rule for on-site solicitation that is

applied equally to all, the
employer will most likely not violate the act.
As with other issues regarding union activity, managers should
have policies regarding pro-
union symbols or clothing that remain the same before and after
union activity. If workers are
allowed to wear green T-shirts before the election, then they
should be allowed to wear green
T-shirts after. Likewise, if employees wear pins or buttons with
political speech on them, once the
campaign begins they cannot be told not to wear them just
because they relate to union activity.
Closing a Plant, Moving a Plant, or Firing Employees
to Avoid Unionization
Some employers react to a union campaign by firing organizing
workers, closing a plant, or
moving the plant to a region of the country without unions or to
another country altogether.
For example, in 2011 airline manufacturer Boeing decided to
move part of its production
from Puget Sound, Washington, to South Carolina. The union
argued that the company was
avoiding the union and its demands at the Washington facility,
although Boeing stated that its
reasons included factors such as the international port available
and the lower cost of doing
business (Jonsson, 2011).
Employers who tell employees that if they form a union the
plant will shut down violate Sec-
tion 8(a)(3) of the NLRA (Healthcare Employees Union, 2006).
Additionally, telling employ-
ees they will lose their jobs due to union activity is also a
violation of Sections 8(a)(1) and

(3) (Nabors Alaska Drilling, Inc. v. NLRB, 1999).
Despite the law, such threats can occur during preelection
activities. For example, labor expert
Kate Bronfenbrenner reports that
from 1993 to 1995, employers threatened to close the plant in
50 percent
of all union certification elections and in 52 percent of all
instances where
the union withdrew from its organizing drive (“withdrawals”).
In another
18 percent of the campaigns, the employer threatened to close
the plant dur-
ing the first-contract campaign after the election was won.
Nearly 12 percent
of employers followed through on threats made during the
organizing cam-
paign and shut down all or part of the plant before the first
contract was nego-
tiated. Almost 4 percent of employers closed down the plant
before a second
contract was reached. (Bronfenbrenner, 1997)
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Other experts allege that American employers intentionally fire
those workers who are
engaged in union organizing and that these firings seriously
“undermine the success” of union
representation campaigns. “The numbers of workers are
surprisingly high and appear to be

climbing: in the early 1980s almost 3% of pro-union workers
involved in union-election cam-
paigns were fired illegally in connection with those campaigns;
in 2005, union organizers and
activists faced a 15% to 20% chance of being fired” (Schmitt &
Zipperer, 2007).
You Be the Judge: Relocating the Dorsey Trailers Plant
In the case Dorsey Trailers v. NLRB (2000), a company was
involved in searching for a new facility
in which to build its trailers. The company had received two of
the largest orders in its history. The
search for the new facility began before the workers went on
strike. Their strike, however, greatly
impacted the company’s ability to fill the orders, leading to a
loss of business and customers.
Before deciding to relocate the plant from Northumberland,
Pennsylvania, to “Cartersville, the
company attempted to find alternative ways to fill their orders.
When the company learned
that the facility in Cartersville, Georgia was available to
purchase they were impressed by the
fact that it would allow them to produce more trailers because
the size of the facility was 75%
larger than their current plant. Additionally, because of the
increased size, they would be able
to establish a needed 500-foot long assembly line in contrast to
their current assembly line of
only 250 feet. The longer assembly line would increase how fast
they could produce trailers
because there would be fewer turns. Each turn slowed down
production. Finally, management
argued that shipping costs would be greatly reduced by the
location in Georgia because most
of their customers were located in the southeast” (Dorsey

Trailers v. NLRB, 2000).
The union argued that the company was relocating the plant in
order to avoid the strike at the
Pennsylvania plant. By setting up shop in Georgia, the company
could fire all of the workers
in Pennsylvania, thus eliminating the union, and reestablish
itself in Georgia, where there was
not a strong union presence. The company argued, however, that
the move was about econom-
ics, the better and larger plant, and cheaper shipping costs.
1. What factors in the Dorsey Trailers case could management
argue were plausible rea-
sons for relocating the plant to another location?
2. What factors could the union argue that would be just as
strong an argument?
3. What do you think the court or NLRB held in this
controversy?
HOLDING: Dorsey Trailers was successful in arguing that the
reason it moved its plant was eco-
nomic and not because it opposed the unions. The factors the
NLRB found relevant included:
1. The fact that the “company searched for a facility after the
strike began because it needed
to fill backlogged orders, not because of antiunion animus”
(Dorsey Trailers v. NLRB, 2000).
2. “Before deciding to relocate to Georgia, the company tried to
find other ways to fill its orders.
3. It tried to use salaried workers and investigated hiring

temporary help.
4. The company turned to the Georgia facility in order to restart
production and to build the
trailers that the Northumberland plant was not producing.”
(Dorsey Trailers v. NLRB, 2000)
5. The company found that the Cartersville location was
tremendous and better suited
its needs.
6. “The long assembly line and the vast increase in the amount
of space at Cartersville
offered substantial efficiency gains over the Northumberland
plant” (Dorsey Trailers v.
NLRB, 2000).
sea81813_04_c04_071-096.indd 91 12/9/14 11:23 AM
Holding Meetings Before an Election
Prior to an election, the employer may require that employees
attend meetings about the
impact that unionizing will have on the business. These
meetings are allowed under the NLRA
and are sometimes referred to as captive audience meetings. In a
captive audience meeting,
the employer will call all of the employees to a meeting room in
the plant. There a representa-
tive of the employer will present on how voting for a union will
negatively impact the place of
business.

Although these meetings allow the employer to keep
employees “captive” for an undetermined amount of
time, they are permitted as long as they are not held
within 24 hours of the election under the Peerless Ply-
wood rule (which prohibits both employers and unions
from mandating meetings within 24 hours of the elec-
tion). If an employer did mandate such a meeting, it
would be an unfair labor practice in violation of the NLRA (
J&D Transportation Employer and
Teamsters Local Union No. 469, 2010).
Watch This
To watch a discussion of captive audience
meetings, visit https://www.youtube
.com/watch?v=w4oDtjaM8EY
You Be the Judge: Mass Electronic Messages
Twenty-three hours before a union vote, an employer sent an
electronic message to all 174 of
its driver employees in their trucks through a special device that
was built into the dashboard
of the vehicle. The message said, “BRING IT TO AN END!”
and “VOTE NO! Time to Decide Your
Future” (In re Virginia Concrete Corp., 2003). The message
could not be ignored because a
beeper came on and stayed on until the driver turned it off. It
was possible for the driver
to delete the 7-minute message by sending a message or
scrolling to another message, but
by that time the employer would have succeeded in
communicating its short campaign mes-
sage. There was no opportunity for the union to send the drivers
such a mass message in the
24-hour period before the election.

1. How have the NLRA rules about contact with employees
failed to keep up with
technology?
2. In your opinion, is a mass-distributed electronic
communication the same as holding a
meeting? Why or why not?
HOLDING: The legality of this action was brought before the
NLRB, which held that permitting
the employer to send its uninvited mass message within the 24-
hour period in this high-tech
way violated the board’s objective to “keep elections free of
undue advantage for any party.”
The employer’s conduct “deprived the employees of a free and
fair choice in the election, and
so the board ruled that . . . the election should be set aside and
that another election should be
directed” (In re Virginia Concrete Corp., 2003).
sea81813_04_c04_071-096.indd 92 12/9/14 11:23 AM
https://www.youtube.com/watch?v=w4oDtjaM8EY
https://www.youtube.com/watch?v=w4oDtjaM8EY
Section 4.5 The Use of Labor Relations Consultants
4.4 Undue Union Interference
Not only must the employer abide by the rules set forth in the
NLRA, but unions, too, cannot
run unbridled. The NLRB is on guard for evidence that a union
has threatened physical or

economic harm, appealed to racial prejudice, and/or created an
atmosphere of fear and coer-
cion. If any of these are present, the election can be voided. The
entity challenging the election
must show that the improprieties substantially affected the
election results (Beaird-Poulan
Div. v. NLRB, 1981).
Inducements offered by the union also constitute coercion that
can invalidate an election. In
one case the union offered to waive initial fees (union dues) for
all employees who signed
union authorization cards before a certification election. This
essentially made them union
members before the vote occurred. The court said that such an
inducement interfered with
employees’ statutory right to refrain from union activities and
did not support the principle
of having a fair and free choice of bargaining representative,
and was therefore grounds for
denying enforcement of the order to bargain with the union,
which won the election (NLRB v.
Savair Mfg. Co., 1973).
In another case of interference, a pamphlet circulated by the
union had misstatements about
benefits and retirement, which were of vital concern to
employees (NLRB v. Bonnie Enter-
prises, 1965). The record in this case contains indisputable
“evidence that cost of living adjust-
ments were a major issue in the misrepresentation campaign,
that the union substantially
misrepresented cost of living provisions in another collective
bargaining agreement between
the union and the employer, and that the misrepresentations
were made the night before the

election in a way that made it virtually impossible for the
employer to answer effectively. The
record also discloses clearly coercive conduct on the part of
union supporters. At a minimum,
three employees were directly threatened and a fourth was
assaulted” (NLRB v. Van Gorp
Corp., 1980).
Like employers, unions are subject to federal legislation
regarding their activities and behav-
ior in the workplace. Unions may not threaten or coerce
employees into joining their organi-
zation, nor may unions misrepresent information in a manner
that denies the employer the
chance to address and correct any errors.
4.5 The Use of Labor Relations Consultants
Employers faced with the prospect of unionization often hire
labor relations consultants to
assist them with the election process. Labor consultants are
often used in two ways: First,
labor attorneys who specialize in defeating efforts to unionize
are hired to guide the employer
through the process of opposing the unionization attempts; and
second, consultants meet
with workers in captive audience meetings and explain the
downside of unionizing and pre-
sent the company’s positive aspects free of the union’s
influence.
Statistically, consultants are very successful at defeating
unions. One reason is that employers
have the authority to make employees go to a room and listen to
presentations about unions’
negative aspects. On the other hand, the union cannot force
workers to listen to its message,

sea81813_04_c04_071-096.indd 93 12/9/14 11:23 AM
Summary & Resources
making this an uneven playing field. Research shows that when
consultants are hired, the
chances of union success decrease. For example, labor expert
Kate Bronfenbrenner found that
more than 75% of employers studied engaged in aggressive anti-
union tactics,
including some combination of discharge for union activity,
captive audience
meetings, supervisor one-on-ones, promises of improvements,
anti-union
committees, leaflets, and letters. Most of these tactics were
associated with
win rates 10–20% lower than in units where they were not
utilized. (Bronfen-
brenner & Juravich, 1994)
Because the industry is so lucrative, a law passed by the U.S.
Department of Labor requires
that employers disclose the agreement between themselves and
consultants, thus making the
use of consultants a matter of public record. Under the Labor
Management Reporting and Dis-
closure Act Section 203(a), an employer must report
“expenditures and activities, including
any agreement or arrangement with a third-party consultant, to
persuade employees as to
their collective bargaining rights or to obtain certain
information concerning the activities of

employees or a labor organization in connection with a labor
dispute involving the employer”
(U.S. Department of Labor, 2014). Similarly, labor consultants
must file forms with the gov-
ernment showing the monies they received for their work. These
forms are public and can be
accessed at the Labor Department website (U.S. Department of
Labor, 2014).
A recent article concerning Bed Bath & Beyond claims that the
company spent more than
$854,000 to defeat a union campaign (6412093, 2014). The only
reason this information is
now public is due to the law making companies file the LM-10
form, which shows how much
they spent on labor consultants. To see the actual form filed
with payments, view http://
kcerds.dol-
esa.gov/query/orgReport.do?rptId=529329&rptForm=LM10For
m.
Summary & Resources
Summary of Chapter Concepts
• The National Labor Relations Act sets out a step-by-step
process for how a union is
to be formed and recognized.
• The first step in union recognition is to identify which
workers are employees, which
are those employees who are covered by the NLRA and are not
supervisors, inde-
pendent contractors, agricultural workers, or domestic servants.
• Workers who wish to unionize must form a bargaining unit,

which must share a
community of interest. The community of interest test involves
factors such as a bar-
gaining history, operational integration, geographic proximity,
common supervision,
similarity in job function, and degree of employee interchange.
• Once the bargaining unit is established, workers sign
authorization cards to indicate
their interest in unionizing. At least 30% of the employees must
sign the cards in
order to move forward with union formation. Authorization
cards are submitted to
the NLRB, which can then certify the bargaining unit.
• A petition is next filed with the NLRB that sets forth
information about the proposed
bargaining unit and asks for recognition. The NLRB
investigates, and if all is in order,
an election to determine if workers wish to be represented by a
union in their work-
place can take place.
sea81813_04_c04_071-096.indd 94 12/9/14 11:23 AM
http://kcerds.dol-
m
http://kcerds.dol-
m
Summary & Resources
• The NLRB supervises the election to determine whether the

workers wish to be
represented by a union in their workplace; a 50% majority of
those voting is needed
for the union to become the employees’ representative.
• Once the union is in place, the employer must recognize it and
bargain with it in
good faith.
• At workplaces that do not comply with the tenets of the
NLRB, a court can order a
Gissel bargaining order, which requires the employer to bargain
with the union even
though the union has not been elected to represent the
employees. This is because
the employer made it impossible to hold a fair election.
• There are numerous unfair labor practices that employers can
commit during the
union process. These include bestowing or conferring benefits
on employees, solicit-
ing grievances, engaging in surveillance of employees,
interrogating employees,
making dire statements about the company’s fate if a union is
elected, regulating
solicitation by employees unless it is necessary for production
or discipline, moving
or closing a plant, and firing workers involved with a union.
• The captive audience rule states that neither unions nor
employers may hold a man-
datory meeting of employees within 24 hours of a union
election.
• Under the NLRA, unions are also regulated in how they deal
with employees before an

election. Unions may not coerce employees into voting for a
union by making threats,
promising benefits, making misstatements about retirement
benefits, and/or engaging
in electioneering the day of voting.
• Labor relations consultants are experts who have dealt with
labor campaigns and
know how to legally counter statements by unions that may be
untrue.
Key Terms
agricultural laborers Farmers, including
dairy farmers and those who raise livestock.
authorization card A card signed by
employees to indicate their willingness
to join a union and used to determine the
percentage of workers who will support
unionization.
captive audience meetings Meetings held
before a union election and made mandatory
by employers to present materials about
why the union will be bad for the company.
community of interest test The shared
commonalities of a group of workers.
consent election When 50% or more of
workers sign authorization cards and man-
agement agrees to union formation.
employer unit A community of interest
based on all of the employees who work for

the same employer.
Excelsior list The list of all employees eli-
gible to vote in the election.
Gissel bargaining order An order mandat-
ing that the employer enter into a collective
bargaining agreement with the union even
though the union has not won an election.
micro units Groupings of workers that are
much smaller than the traditional bargain-
ing unit.
Milchem rule The rule that elections will be
overturned if representatives of any party to
the election engage in “prolonged” conversa-
tions with voters waiting to cast their ballots,
regardless of the content of the conversation.
sea81813_04_c04_071-096.indd 95 12/9/14 11:23 AM
Summary & Resources
no-solicitation policy A rule set forth by an
employer that prohibits the distribution of
union pamphlets or recruiting to join a union.
Peerless Plywood rule The rule that states
neither unions nor employers may hold a
meeting within 24 hours of an election.
petitioning process The process whereby
employees request that the NLRB oversee a

union election.
plant unit A community of interest based
on working in the same geographic place.
solicitation The distribution of information
to fellow employees for the purpose of get-
ting them to join a union.
solicitation of grievances The process
whereby an employer asks employees about
changes they would like to see made at the
workplace in anticipation of a union vote.
supervisors Workers who have authority
to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline
other employees.
voluntary recognition The process
whereby an employer willingly recognizes a
union without a formal election.
Critical Thinking Questions
1. Why does federal labor law go to such extremes to protect the
process of union elec-
tions? Do you think that the law is too detailed and
comprehensive, or do you think
that the legislation is necessary? Explain your answer.
2. The NLRB attends every election and supervises the voting.
Do you think this is nec-
essary to obtain a fair result? Why or why not?
3. Of all the petitions filed with the NLRB, what percentage

result in union formation?
How do you explain this number?
4. Employers are not allowed to coerce employees who are
about to vote in a union elec-
tion, which includes offering them improved benefits. Do you
agree with this rule, or
would you change it to allow employers to make such
improvements to their employ-
ees’ benefits packages? How could allowing such a policy
decrease labor strife?
5. Suppose a hotel’s employee handbook contains various rules
regarding employee
behavior. One clause in the handbook states it is unacceptable
to make false, vicious,
profane, or malicious statements toward or concerning the hotel
or any of its employ-
ees. An employee is overheard complaining to another employee
about his pay and
hours while employed at the hotel. As a result of his statements,
he is fired. He then
brings a complaint to the NLRB. What do you think would
protect the employee? What
do you think would be the result of this action? Explain your
reasoning.
Research Project
1. Read the following article about Boeing’s decision to move
its plant from the state
of Washington to South Carolina, a state that is known for its
antiunion positions:
http://www.nytimes.com/2011/04/21/business/21boeing.html?_r
=0. After read-
ing the article, take the side of management or labor and argue

either for the right
of Boeing to move the plant or for the right of the NLRB to find
that such a move
violates the act.
sea81813_04_c04_071-096.indd 96 12/9/14 11:23 AM
http://www.nytimes.com/2011/04/21/business/21boeing.html?_r
=0
47
3The Rise of Legal Protection
Courtesy Everett Collection
Learning Objectives
After completing this chapter, you should be able to:
• Explain how legal processes such as yellow dog contracts,
injunctions, and antitrust legislation
restrained labor.
• Examine the legislation that was passed prior to World War II
that helped unify and protect workers, including
the Norris-LaGuardia Act, the National Industrial Recovery Act,
and the National Labor Relations Act of 1935.
• Summarize the major events that occurred after World War II
that affected organized labor, such as the
Taft-Hartley Act, the merger of the American Federation of
Labor and the Congress of Industrial Unions, and
President John F. Kennedy’s administration.

• Describe the position of labor at the end of the 20th century.
sea81813_03_c03_047-070.indd 47 12/5/14 2:27 PM
Section 3.1 Impeding Union Activity
Introduction
At the end of the 19th century, intense animosities continued
between workers and manage-
ment. Events like the violent Great Railway Strike of 1877, the
Haymarket Square Riot, and
the Homestead Strike exemplify these tensions.
With the turn of the 20th century, these animosities did not
disappear; on the contrary, they
heightened, but there was eventual progress. The next sections
discuss the legal processes
that were used to keep labor in check, followed by a slow
evolution toward the other end of
the spectrum: recognition that labor should have a voice in the
workplace.
3.1 Impeding Union Activity
There were three key ways in which the law was used to shut
down union activity between
the 1870s and 1930s. These methods included yellow dog
contracts, injunctions, and anti-
trust legislation. Each method was sanctioned by the courts and
upheld as a legal way to stop
workers from organizing.
Yellow Dog Contracts
Starting around 1870, employers began using what are referred

to as yellow dog contracts.
These contracts stated that as a condition of being hired, the
employee agreed not to partici-
pate in a union while in the employ of the owner. Refusing to
sign such a contract resulted
in not getting the job, so workers complied with these terms.
After the contract was signed,
if a union attempted to get workers to join, the owner could sue
the union for attempting to
breach the contract between the employee and employer, a
wrong known as interference
with a contractual relationship.
Although these contracts were initially upheld as legal and
constitutional, they were finally
laid to rest when Congress passed the National Industrial
Recovery Act (NIRA) in 1933,
which stated that employees have the right to organize and
bargain collectively, free from
interference, thus making it illegal to use yellow dog contracts.
Until that time, however, the
yellow dog contract was a highly effective way to halt union
activity.
Injunctions
In addition to yellow dog contracts, courts during this era also
employed another weapon to
effectively quash union activity—that of the injunction. An
injunction is an order issued by a
court that commands the enjoined party either to do a specific
act or to refrain from doing a
specific act. For example, an injunction might order a union to
cease its strike (commanded
to refrain from doing a specific act) and return to work
(commanded to do a specific act). One
of the earliest and most successful uses of the injunction can be

found in the Great Pullman
Strike that occurred in 1894.
sea81813_03_c03_047-070.indd 48 12/5/14 2:27 PM
The Great Pullman Strike
At this time, train travel in the United States was dirty, noisy,
and cramped. George Pullman,
a carpenter and engineer, was traveling overnight on a train,
uncomfortable as he sat up for
the entire night. He was struck by the fact that train travel could
be vastly improved with
luxurious accommodations. This revelation led him to create
what he called Pullman sleeping
cars, railroad cars with comfortable chairs and cabins with beds
for overnight sleeping. He
then leased these specialized Pullman cars to various train
companies, who attached them to
their line of cars. Patrons could travel in luxury and sleep
overnight in a bed while the train
continued its journey.
The resulting Pullman Palace Car Company was successful and
profitable; so much so that
in the 1880s Pullman founded a town outside of Chicago named
Pullman, Illinois. There he
built his factory and provided company housing for his workers
and their families, as well
as churches, schools, and stores. The town still exists today and
can be viewed in pictures at
http://www.pullmanil.org/town.htm. Workers paid rent to
Pullman and bought their gro-

ceries from his stores so that, in effect, much of the money they
earned was paid back to Pull-
man; this arrangement became known as a company town.
Pullman Palace Car workers were members of the American
Railway Union (ARU). The ARU
represented most railroad workers and was founded in 1893
under the leadership of Eugene
Debs. It had been previously successful in a strike against the
Great Northern Railway, shutting
it down for 18 days. In 1894 George Pullman lowered his
workers’ wages. The ARU called a
strike and asked every train worker in the nation to join in.
Eventually, the successful strike shut
down the entire railway system in the Northeast, causing a
major disruption in interstate com-
merce, rail travel, and the economy. Strikes of this significance
made a long-lasting impression
on the American people. It is one thing for workers to shut
down a plant, but when commerce
comes to a halt, people’s daily lives are disrupted—rather than
feeling allegiance to the workers
and their cause, the public’s reaction is one of anger (Illinois
Labor History Society, 2010).
In the case of the Pullman strike, the managers of the railroad
had a novel idea: They attached
the Pullman cars to the back of the mail trains. When the
strikers delayed the trains, they
delayed the mail, which then became a federal issue. As a
result, President Grover Cleveland
had jurisdiction to act under the commerce clause. He called in
federal troops, and a huge
melee ensued. An injunction was issued to stop the strike, and
Debs was arrested and held in
contempt for failing to abide by the injunction when he refused

to end the strike. The result-
ing 1895 case, In re Debs (In the Matter of Debs) was
significant because the U.S. Supreme
Court approved the use of an injunction to stop a labor strike.
Samuel Gompers
An injunction was next used effectively against American
Federation of Labor (AFL) president
Samuel Gompers in the 1909 case Gompers v. Buck’s Stove &
Range Company (Gompers
v. Buck’s Stove & Range Company, 1911). The AFL published
a monthly magazine called the
American Federalist, which contained a “We Don’t Patronize”
(which is another way of saying
boycott) list of companies that the union designated as unfair to
labor. Buck’s Stove & Range
had refused to give its workers a 9-hour day. As a result, the
company appeared on the maga-
zine’s list. When readers saw that the company was unfair to
labor, word spread and sales
at Buck’s Stove & Range dropped. The company saw its profits
fall and sought an injunction
against Gompers, his fellow officers, and the AFL.
sea81813_03_c03_047-070.indd 49 12/5/14 2:27 PM
http://www.pullmanil.org/town.htm
The court agreed, issuing an injunction that prohibited Gompers
and the AFL from publish-
ing the list. Gompers had other ideas, however. He refused to
obey the order and continued
to publish the list, arguing that his First Amendment free speech

rights were impeded by
the issuance of the injunction and that free speech was more
important than Buck’s Stove
& Range’s appearance on the list and subsequent loss of
business. The court did not agree,
holding that the injunction did not prohibit free speech; rather,
it prohibited the boycott. As a
result, Gompers was sentenced to jail for contempt of court for
refusing to honor the injunc-
tion. However, he was released on bail; the case was appealed
to the U.S. Supreme Court,
where it was eventually struck down, so Gompers never served
any jail time (Gompers v.
Buck’s Stove & Range Company, 1911).
These cases are representative of the many in which injunctions
were used to shut down
workers who called for either a strike or a boycott. Subsequent
legislation eventually prohib-
ited this particular use of an injunction in a labor dispute, but it
would be some years until
that occurred.
Antitrust Legislation
The third weapon in the antiunion arsenal was the application of
antitrust legislation to
union activity. Antitrust laws are concerned with stopping
monopolies, or combinations, so
that consumers can buy goods at a price based on the
marketplace. Following the Civil War,
numerous business entities combined to form powerful trusts or
monopolies. One such
business was the Standard Oil Company, founded by John D.
Rockefeller. The creation of such
entities stifled competition by acquiring competitors until none
were left. This allowed the

business to set a price for its goods without any other business
remaining to compete and
offer a lower price. Under increasing pressure from the general
public to end such combina-
tions, in 1890 Congress passed the Sherman Antitrust Act.
Another typical Sherman Antitrust Act case would be one in
which two competing businesses
conspired together to diminish competition. Say, for example,
that Tire Company A and Tire
Company B had a meeting of their top management in which
they decided not to compete against
one another, but instead agreed to set their prices at the same
amount. As a consumer, you would
see the effect of such price fixing if you shopped around for
tires. Instead of varying prices, you
would find that the cost of a tire from Company A is exactly the
same as a tire from Company B.
Therefore, competition between the two businesses is not
encouraging them to lower prices.
Instead, by working together, the tire companies have set the
price of products, so there is no
competition. When there is no competition, product price does
not fluctuate, but instead is
set by the sellers. Standard Oil was one of the first industries to
feel the effects of the Sher-
man Antitrust Act in the 1911 case Standard Oil Co. of New
Jersey v. United States, in which the
court divided the company into smaller entities that could then
compete against one another.
It may seem strange to think that the same law used to break up
combinations and monopo-
lies would apply to unions, but the courts soon applied the act
under the theory that unions

behaved like monopolies when they set prices for their wages.
The first application of this
theory was in the 1908 Danbury Hatters case, Loewe v. Lawlor
(1908/1915). The Danbury
Hatters factory in Connecticut manufactured hats and sold them
to buyers within and outside
the state, thus making the business engaged in interstate
commerce and subject to federal
law. The United Hatters of North America, a union that
consisted of 9,000 members and was
affiliated with the AFL, had organized most of the hat factories
in the country but was not
sea81813_03_c03_047-070.indd 50 12/5/14 2:27 PM
successful at the Danbury Hatters plant, despite the fact that the
plant featured dismal work-
ing conditions and treated its workers poorly (American
Federation of Labor, 1914).
The AFL, the United Hatters, and the workers considered how
to respond to the conditions
at the plant. If they went on strike, they reasoned, the company
would just replace them with
new workers, which was not prohibited at the time. They
decided instead to declare a nation-
wide boycott. They publicized that Danbury Hatters treated its
employees unfairly and asked
the general public not to buy its product. (Since union-made
hats had a union label attached
to them, the American public would be able to discern if the
hats were union made or not and

could respect the boycott.)
The boycott ensued, and it was a success. Profits at Danbury
Hatters dropped significantly.
Searching for a way to recover their losses, the owners of the
factory decided to sue the union
and its members for financial damages incurred during the
boycott. The lawsuit character-
ized the boycott as a combination in restraint of trade, which
was in violation of the Sher-
man Antitrust Act.
Since the union asked consumers throughout the United States
not to buy the hats, the union
engaged in what is deemed a secondary boycott. In a secondary
boycott, neutral parties
such as consumers are asked to apply pressure to the employer,
in this case Danbury Hatters,
to force the employer to comply with the union’s wishes. The
concerted, or united, activity
between the union and consumers was used to determine that the
union was “united in a
combination” and that it was “restraining and destroying
interstate trade and commerce,”
thereby violating the act (Danbury Hatters Case, 1908).
Secondary boycotts can be effective tools for unions to employ
against owners. They are still
used today in limited circumstances. Figure 3.1 depicts how a
secondary boycott works.
Figure 3.1: Diagram of a secondary boycott
A secondary boycott relies on neutral parties to apply pressure
to the employer, forcing the employer
to comply with union wishes.

Employer A
Danbury Hatters
Primary Boycott Secondary Boycott
Neutral Party
Suppliers to Danbury
Hatters (hypothetically)
Neutral Party
Truck drivers refusing
to deliver goods
(hypothetically)
Neutral Party
Customers of
Danbury Hatters
The union involved in the dispute with Employer A
then exerts pressure on all different neutral parties
not to do business with Employer A.
Original boycott starts here
Boycott by Union
Against
Danbury Hatters
Employer A

Danbury Hatters
Primary Boycott Secondary Boycott
Neutral Party
Suppliers to Danbury
Hatters (hypothetically)
Neutral Party
Truck drivers refusing
to deliver goods
(hypothetically)
Neutral Party
Customers of
Danbury Hatters
The union involved in the dispute with Employer A
then exerts pressure on all different neutral parties
not to do business with Employer A.
Original boycott starts here
Boycott by Union
Against
Danbury Hatters
sea81813_03_c03_047-070.indd 51 12/5/14 2:27 PM

Section 3.2 Turning the Tide Toward Labor
Not only was the union held in violation of the act, but the
union and its members were also held
personally liable for the loss of profits sustained and were
assessed damages in the amount of
$252,000. Personal liability means that once the assets of the
union were depleted, the workers
themselves would have to pay back the money. In addition, the
Sherman Antitrust Act awards
treble damages, so the amount owed was then tripled. These
were enormous sums at the time,
and workers made very little money. The court’s holding must
have been devastating to the
employees and their families and undoubtedly made them, and
other workers throughout the
country, think twice about ever conducting an open and visible
campaign again.
After this decision, there was a public outcry about what was
perceived to be a misapplica-
tion of the law. In response, Congress amended the Sherman
Antitrust Act with the Clayton
Antitrust Act of 1914, a federal statute that added language
specifically excluding labor
unions from being deemed a combination or conspiracy:
The labor of a human being is not a commodity or article of
commerce. . . . Nor
shall such organizations, or the members thereof, be held or
construed to be
illegal combinations or conspiracies in restraint of trade, under
the antitrust
laws. (Clayton Act, 1914)

Unions and labor leaders alike heralded the Clayton Act.
Gompers declared it the “industrial
Magna Carta upon which the working people will rear their
construction of industrial freedom”
(as cited in Craver, 1995, p. 21). However, the rejoicing was
short lived, and labor was taken
aback when a subsequent court decision in 1921, Duplex
Printing Press Co. v. Deering, held
that the Clayton Act did not provide statutory protection to
secondary boycotts. The court not
only outlawed labor’s ability to legally engage in secondary
boycotts, it also gave employers the
right to sue any union that did so. Declaring secondary boycotts
illegal while also giving employ-
ers a right to sue proved to be effective in halting these types of
boycotts.
3.2 Turning the Tide Toward Labor
With the use of injunctions and antitrust laws to prohibit union
activity as well as the public’s
general disdain resulting from the many strikes, it must have
seemed like a discouraging time
for labor. After all, they had seen their leader, Samuel Gompers,
jailed for contempt of court
and watched as the courts imposed personal fines on Danbury
Hatters employees. History
is never without its twists and turns, however, and just as the
labor movement seemed at its
lowest ebb, the early 20th century heralded the beginning of
labor’s greatest strides toward
unification and legal protection.
The Railway Labor Act of 1926
Between 1917 and 1920, during which time the United States
was engaged in World War I,
there was widespread fear that labor unrest could lead to a

shutdown of the nation’s railroads.
Mindful that if the railroads shut down, the economy would
suffer, the government nationalized
the railroads under the Federal Possession and Control Act in
1916. By taking over the rail-
roads, the government could ensure that no strikes would take
place (because military person-
nel would be available to take over the job of any striking
workers). The government argued that
national security was at risk, the quality of the railroads had
been degrading, and the president
sea81813_03_c03_047-070.indd 52 12/5/14 2:27 PM
Section 3.2 Turning the Tide Toward Labor
and Congress, under their war powers, had to do something to
ensure the railroads’ viability. As
a result, the federal government took the railroads out of the
hands of their owners until 1920,
after the war had ended and the threat to national security had
diminished.
That same year, Congress passed the Transportation Act of
1920, which created a Railroad
Labor Board to hear disputes between railroad owners and
workers, a forerunner to today’s
arbitration process. Although creating such a board represented
tremendous progress, parts of
the act were so criticized that the president sought revisions.
This time, however, the process
was much different. In an extraordinary recognition of labor,
President Calvin Coolidge called
for the railroads and unions to work together on a bill that

would ensure peace in the railroad
industry, which culminated in the Railway Labor Act of 1926
(Barrett & Barrett, 2004). Today
the Railway Labor Act governs labor relations in both the
airline and railway industries.
The significance of including labor in these meetings cannot be
overstated. This was the first
time that labor and management sat down at the behest of the
government and worked out an
agreement together. The Railway Labor Act is still in effect
today and guarantees “effective and
efficient remedies for the resolution of railroad–employee
disputes arising out of the interpre-
tation of collective-bargaining agreements” (Railway Labor Act,
2012). The Adjustment Board
(which replaced the Railroad Labor Board) “was created as a
tribunal consisting of workers and
management to secure the prompt, orderly, and final settlement
of grievances that arise daily
between employees and carriers regarding rates of pay, rules
and working conditions” (Union
Pacific Company v. Sheehan, 1978).
In short, the federal government recognized the importance of
unions enough to include rep-
resentatives in both the formulation and establishment of this
agency, signaling a newfound
and profound respect for unions and their concerns.
Norris-LaGuardia Act of 1932
Just a few years later, the United States underwent a major
economic depression, beginning
with the stock market crash in 1929. Much pressure was on
President Herbert Hoover’s
administration to turn the economy around. Hoover recognized

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