FINAL EXAMINATION
Labor Law
Professor Theodore Franklin
Fall 2003

1. You have three (3) hours for this exam. PART A: Essay Questions. Suggested time: 60 minutes for each of two questions. PART B: Suggested time 60 minutes for all 10 questions.

2. This is an “open book” exam. You may have all course materials with you at the exam. In addition, you may have with you and consult during the exam any written or printed sources. However, you may not cite any legal authority other than the course materials or items mentioned in class discussion. You must work in the assigned exam room and may not use the library or any electronic database (e.g., Westlaw or Lexis) during the exam.

3. You are on your honor not to discuss this exam with anyone while taking it or, after the exam is over, with or in the presence of anyone who does or might have to take this exam at a later date. Students who have rescheduled may not permit themselves to overhear any conversation about the exam prior to completing it. The system of exam rescheduling depends on strict adherence to these rules.

4. There are two essay questions that are worth 30 points each. There are ten short answer questions that are worth a total of 40 points.

5. Do not put your name anywhere on your bluebooks. Write your exam number on every bluebook you hand in. Also write your exam number on the examination, which must be turned in with the bluebooks. Write “Labor – Fall 03” on the cover of each bluebook. Number your bluebooks, e.g., “1 of 3,” “2 of 3,” and “3 of 3.” Please write your answer legibly and skip every other line.

6. If facts are not given which are or may be necessary to analyze an issue, state what information is needed and why it is or might be legally relevant. “NLRA” or “the Act” refer to the National Labor Relations Act, as amended. All employers mentioned in hypotheticals are “employers” within the meaning of the Act, and they operate within and/or their business affects interstate commerce. All nonmanagerial, nonsupervisory employees mentioned are “employees” within the meaning of the Act. All unions are “labor organizations” within the meaning of the Act.

Good luck!

PART A: Essay Questions
Essay Question 1

(Suggested time: 60 minutes)

The Right to Choose Women’s Health Clinic provides a variety of reproductive health services and counseling in Los Angeles, California. Abortions are performed at the clinic every Thursday by volunteer doctors from the nearby university hospital, but most of the work of the clinic consists of counseling young women on birth control methods, including abstinence. All staff below the supervisory level—including counselors, receptionists, nurses, and janitors—are represented by the United Service Workers Union (“USWU”). The Clinic’s collective bargaining agreement contains a union security clause, a management rights clause, a just cause provision, a standard arbitration clause, and a zipper clause.

Jose, Maria, and Billie Jo, the three janitors at Right to Choose, have become close friends recently. Maria is very active in a pro-life group, the Lambs of Truth, which has been picketing abortion clinics and demanding that they stop engaging in “organized murder of the unborn.” She is working at the Clinic with the hope of finding some way to persuade its management to eliminate use of the facilities to perform abortions. A few weeks ago, Maria had a day off on a Thursday and stood outside the clinic for the entire day holding a placard that said, “Murder Is Wrong. This Clinic Kills Innocent Children.” The Clinic warned her that if she engaged in any repeat of such conduct she would be fired summarily.

Jose and Billie Jo have been reading anti-abortion pamphlets that Maria has brought to work and passed out to co-workers during break times. One evening they went to Maria’s house where they watched a video prepared by the national Lambs of Truth organization. They were deeply moved by the video and pledged to support Maria in her efforts to get the Clinic to stop performing abortions.

Maria went to the USWU office and spoke to the Union’s top officer, business manager Bob Roberts. Bob is a born-again Christian and he told Maria that he shared her concerns and, if she could assure him that at least a couple of other employees shared her views, he was willing to demand an end to abortions in the negotiations for contract renewal which had just started. “What’s more,” he said, “I’ll call a strike vote and campaign night and day if they turn us down. You can bet on that! I’ve been waiting years for someone like you to turn up in my office.”

Maria told Jose and Billie Jo of her encouraging conversation with Bob Roberts. Meanwhile, Mildred, a receptionist who had also read Maria’s materials, called Maria to offer her support for the effort to rid the Clinic of its abortion practice.

The next day, Bob Roberts showed up at a bargaining session with a Right to Life bumper sticker on his briefcase. He opened his briefcase and took out a single page of paper and slid it across the table. In 14 pt. type, the page had the following text: “Proposed Contract Language re PROHIBITED PRACTICES: The Employer agrees not to conduct, and will not require any employees to participate in, any abortions on its premises, including terminations of pregnancy brought about by surgery, orally administered drugs, or any other procedure.” Bob Roberts told the management representatives, “That’s the most important issue we have to talk about this year. You may think this a big city where ‘anything goes,’ but your workers have asked us to make this demand and it’s no joke.”

Edna Heathrow, the Clinic’s director, immediately told Roberts that the Clinic could not afford to shut down its abortion practice because half its revenues came from performing abortions, and the Clinic would be unable to remain in business without the abortion practice. Roberts raised his eyebrows and said, “Edna, I’ll be back here tomorrow to look at your books. You better have them ready because we mean business on this. Your own workers are disgusted with what you do here on Thursdays. Your threat to shut down is just management hardball and we do not appreciate it.”

A day later, the two parties returned to negotiations and Roberts asked Heathrow whether she’d brought the books. Heathrow looked directly at Roberts and said, “No, Bob. And you’re not going to see them. We’re simply not willing to talk about this anymore.”

A week passed and the parties showed up for another bargaining session. Roberts agreed to move on to other topics but directed the Union’s attorney to file an unfair labor practice charge against the Clinic under section 8(a)(5) of the Act for refusal to bargain. The Union and the Clinic quickly signed an agreement covering everything but the disputed issue of prohibited practices and agreed to leave that topic for further negotiations if required by the Board.

Maria, Jose, Billie Jo, and Mildred were distraught when they heard that the Union had “caved” on the abortion issue. They immediately filed a lawsuit in Los Angeles Superior Court asserting that the Union had engaged in negligent misrepresentation. But Maria did not want the group to place all of its eggs in one basket. Litigation could take a long time and she felt it was time for direct action. Maria called a meeting that was attended by herself, Jose, Billie Jo, and Mildred. They agreed unanimously to a public campaign to press their demands.

On their lunch break the next day, Billie Jo and Mildred stood outside the entrance of the Clinic and passed out the following handbill:

RIVERS OF BLOOD ARE FLOWING THROUGH THIS CLINIC.
We Protest.

Although this clinic hides behind bureaucratic phrases like “Reproductive Health Services,” it is a butcher shop in which unborn children are slaughtered.

We who work here wind up with blood on our hands, literally and figuratively.

Please let the management here know that you disapprove of their running a charnel house disguised as a “Health Clinic.”

Also, please tell them you support our demand that they negotiate immediately with the Pro-Life Workers’ Committee to discuss the working conditions that endanger Union workers in this establishment who are forced to deal with the blood that is spilt in these abortions. The workers are not receiving proper information about the risks and dangers of direct contact with the blood and management has failed to provide appropriate protective measures.

Thank you,
Pro-Life Workers’ Committee

After lunch, the Clinic fired Billie Jo and Mildred. Immediately, Maria and Jose went up to Edna Heathrow’s office and demanded to speak to Edna. Edna met them in a conference room. Maria and Jose expressed shock that the Employer had fired Billie Jo and Mildred, two workers who had never been disciplined before. Edna asked Maria and Jose if they both agreed with the contents of the leaflet that had been passed out by Billie Jo and Mildred. They both nodded. Edna then said, “Well, I’m sorry but I have to let you go as well. The people who come here are often in a very vulnerable emotional state. It is bad enough when outsiders yell at them but I cannot risk subjecting them to harassment by our own employees. If you don’t support our work, we don’t have a position for you.”

Discuss the labor law issues raised by this scenario. Be sure to cite the relevant statutory provisions and any case law which may be pertinent. Evaluate the likelihood of success of the 8(a)(5) ULP, the workers’ lawsuit against the USWU, and any other claims which may be raised and suggest appropriate remedies, if any. What are the prospects that Billie Jo, Mildred, Maria, and Jose will get their jobs back?

Essay Question 2

(Suggested time: 60 minutes)

The United States Supreme Court has described the policy of the National Labor Relations Act in the following terms:

“Having protected employee organization in countervailance to the employers’ bargaining power, and having established a system of collective bargaining whereby the newly coequal adversaries might resolve their disputes, the Act also contemplated resort to economic weapons should more peaceful weapons not avail. [The Act does] not give the Board a general authority to assess the relative economic power of the adversaries in the bargaining process and to deny weapons to one party or the other because of its assessment of that party’s bargaining power.” (American Ship Building Co. v. NLRB, 380 U.S. 300 (1965) (p. 544 of our casebook).)

Is this a fair statement of the national labor policy expressed in the Act? Does it provide a good working framework for labor relations in this country? Have the Supreme Court’s and the Board’s interpretations of the Act been faithful to this policy? In relation to this last question, discuss the various economic weapons available to labor and management and how freely the parties may use them under the current interpretation of the Act.