1 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

2 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

3 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.)

4 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).

5 Canada Required mediation/conciliation under certain circumstances Required first agreement arbitration in several provinces

EFCA EFCA, if passed, would require first agreement arbitration 6

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. 7