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INSURANCE AGENTS
• TWO DIFFERENT CONCEPTS OF
BARGAINING
– BOARD: Reasoned Discussion
– COURT: “Rough and Tumble”
• POINT: NO INCONSISTENCY
BETWEEN PRESSURE TACTICS AND
FULFILLING OBLIGATION TO
BARGAIN
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INSURANCE AGENTS (cont.)
• Components of Section 8(d)
– Behavior: “to meet at reasonable times”
– Intent: “confer in good faith”
– Results: no compulsion to agree
• Board/Courts must not dictate outcomes of
bargaining
– Directly, through TCE
– Indirectly, through regulating weapons
• 8(a)(5) and 8(b)(3) impose parallel
obligations on unions and employers
2
INSURANCE AGENTS (cont.)
• Three types of employee activity:
– Protected: activities in which employees may engage for
which employer is prohibited from imposing
employment-related sanctions ( e.g., strike, participation
in strike-related boycott)
– Unprotected: activities in which employees may engage
but for which employer is not prohibited from imposing
employment-related sanctions (e.g., slowdown, partial
strike)
– Unlawful: activities which are prohibited by law (e.g.,
sit-down strike, vandalism, rec picketing, etc.)
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Partial Strike
• “Any employee may, of course, be lawfully
discharged for disobedience of the employer's
directions in breach of his contract ... While these
employees had the undoubted right to go on a
strike and quit their employment, they could not
continue to work and remain at their positions,
accept the wages paid them, and at the same time
select what part of their allotted tasks they cared to
perform of their own volition, or refuse openly or
secretly, to the employer's damage, to do other
work.” Elk Lumber Co., 91 NLRB 333, 338
(1950).
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Canada
• Required mediation/conciliation under
certain circumstances
• Required first agreement arbitration in
several provinces
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EFCA
• EFCA, if passed, would require first
agreement arbitration
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Issue Formulation
Court Formulation
•
“The precise question is whether the
Board may find that a union, which
confers with an employer with the
desire of reaching agreement on
contract terms, has nevertheless
refused to bargain collectively, thus
violating that provision, solely and
simply (emphasis added) because
during the negotiations it seeks to put
economic pressure on the employer to
yield to its bargaining demands by
sponsoring on-the-job conduct
designed to interfere with the carrying
on of the employer's business.
Alternative Formulation
The precise question is whether the
Board may find that a union, . . ., has
. . . refused to bargain collectively,. . .
because during the negotiations it
seeks to put economic pressure on the
employer to yield to its bargaining
demands by sponsoring on-the-job
conduct designed to interfere with the
carrying on of the employer's
business.
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