UNIVERSITY OF MARYLAND SCHOOL OF LAW. LABOR LAW (3 Hours) Professor Marley Weiss December 18, Signature:

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1 UNIVERSITY OF MARYLAND SCHOOL OF LAW LABOR LAW (3 Hours) Professor Marley Weiss December 18, 2002 Day Division 1:30-4:30 p.m. No. Signature: Printed Name: INSTRUCTIONS: 1. Honor Code. Student conduct, during exams and at all other times, is governed by the Student Honor Code. 2. Signing and numbering. Sign and print your name in the blanks above. Put the number found above on each of your answers to the examination (blue books, hard copy or discs/cds) and on the envelope. Both the envelope and your answers should contain your exam number, the course name, and the instructor's name. Do not put your name anywhere on the envelope or on the answers. 3. Submission. Upon completion of the examination, put your answers to the examination in the envelope, fasten the flap with the clasp, and hand in the envelope to the exam administrator. Be sure to enclose all of your answers-- you will be graded only on what is inside the envelope. Do not put the exam questions in the envelope. Hand in the questions separately to the exam administrator. 4. Time. You will be graded only on examination answers turned in to the exam administrator within the announced time. Each student is responsible for ensuring that all the completed examination answers and the examination question sheets are handed in to the examination administrator. 5. Computers. Students may use computers for word processing, but may not have access to the Internet on this examination. Students are required to provide their own computers and must type their exam answer in Word 97, Word 2000 or Word XP. Students may bring their own printer and turn in a hard copy, printing the answer within the time allotted for the examination, or they may submit two discs or two cds (a main disc/cd and a backup disc/cd.) The student work product must be completed and returned

2 Labor Law Professor Weiss Page 2 of 8 to the exam administrator according to the normal exam administration rules. No allowance for additional time will be given for equipment failure, etc. Law school facilities/computers in the TAL Center, the Clinic, student journal offices, other offices in the law school and pay-for-print stations may not be used by students. An electrical hookup for the laptop and/or printer is the only law school-provided resource which the student is permitted to use. If a student does not submit a hard copy and the student s exam answers cannot be printed from either disc/cd, the student will receive a grade of NC, No Credit. SPECIAL INSTRUCTIONS: This examination is OPEN BOOK, MODIFIED. You may use your casebook and supplement, assigned course handout materials, hard copy versions of your classnotes, and any other non-commercial, hard copy materials you have prepared alone or with your classmates. You may not have with you any hornbooks, commercial outlines or other published materials, nor any published materials xerograpically reproduced other than course handouts, nor any materials purchased from any source for money or any other form of consideration other than a mutual exchange between class members of study materials. If you choose to take this examination using a computer, you may not have with you, either on your hard drive, on floppy disk, or on any other electronic media, any classnotes, outlines, or other material pertaining to this course. Such materials may be brought into the examination room only in printed out, hard copy versions. For grading purposes, each question will be weighted approximately in proportion to the time allocated for the answer. If your examination is handwritten, please write only on one side of the page, and only on every other line. If your examination is typewritten, it is to be triple spaced with ample margins.

3 Labor Law Professor Weiss Page 3 of 8 Q. I. (100 minutes total) The JCN Corp. is a global corporation, engaged in the design and manufacture of computers and computer components, the development, distribution, and sales of computer software, and the provision of information technology consulting services to businesses. Most divisions of JCN have operated on a non-union basis for many years. Industrial relations experts attribute this in part to the company s successful policy of always providing its employees with pay and benefits matching or exceeding those of its competitors, both within the industry and in the local labor markets from which JCN draws its workforce. Experts also attribute JCN s success at remaining non-unionized to its promises of job security to its employees. Until two years ago, JCN had never laid off a single employee. Things have changed recently, however. A wave of corporate reorganizations and bankruptcies, and a shake-up of the information technology industry as a whole forced JCN to close several operations and to reduce its world-wide workforce two years ago by over 20%. Although some of the head count reductions were achieved by attrition, JCN had to lay off about 5% of its U.S. workforce. Most of those layoffs came from employees who lost their jobs when JCN closed two of its U.S. manufacturing plants, eliminated five of its twenty U.S. data processing centers, and subcontracted the work of one of its three units designing software. JCN has so far survived the industry s overcapacity and downsizing, but its profit margins are declining. Some of its lenders are threatening to withhold necessary renewal of loan financing unless JCN slashes its labor costs. As a result, over the last six months, the United Data Processing Workers Union (UDPWU) has won NLRB-conducted representation elections in five of the remaining fifteen JCN data processing centers in the U.S. Each facility has been certified by the NLRB as a separate bargaining unit. The union has written a letter to the employer demanding that JCN commence bargaining. The union has proposed, in the interest of maximum efficiency, that they attempt to bargain one collective bargaining agreement which would cover all five newly-unionized facilities.

4 Labor Law Professor Weiss Page 4 of 8 The grapevine is circulating stories of an impending UDPWU drive to unionize the other ten data processing centers in the U.S. At the same time, fresh rumors are circulating of further consolidation of JCN operations, including a rumor that the employer may close one or more of the recently unionized plants and move most of its operations to one of the non-union facilities. A. (45 minutes) You are counsel for the employer, JCN. Advise the employer about its alternative courses of action, analyzing their legality and the economic and legal risks which may apply to each. Recommend whichever set of solutions you believe would best serve the employer. Justify your conclusions. B. (60 minutes) You are counsel for the union, UDPWU. The employer and the union have been bargaining on a five-facility basis for four months. While a good bit of progress was achieved in the first few weeks of bargaining, the parties now appear to be at an impasse. The employer appears to be engaged in very firm bargaining. JCN is demanding that the union accept a wage freeze for the next year, in light of the economic conditions in the industry in general, and at JCN in particular. JCN is also demanding that the workers pay 50% of the premiums for their health care plan, which previously the employer had paid for in full, and which the employer continues to pay in full for the employees at the ten non-union JCN plants. JCN is insisting that any agreement include a management s rights provision under which it retains sole authority to hire and fire, to transfer, close, subcontract, or consolidate operations, and to discipline employees. The employer has, however, agreed to a dues withholding clause, to a just cause for discharge provision, and to a binding grievance and arbitration procedure. An agreed-upon seniority provision would govern the order of layoff and recall in the event of a reduction-inforce.

5 Labor Law Professor Weiss Page 5 of 8 The earliest of the union s five certifications was obtained eight months ago. The union s organizing campaign at the other 10 facilities, each of roughly equal size, has stalled, in large measure because JCN has urged those workers to wait and see whether unionizing gets them anything at the five unionized plants. UDPWU has collected union authorization cards from 60% of the workers at one data processing center, 50% of the workers of three other data processing centers, 35% of the workers at five of the data processing centers, and 10% of the workers at the remaining two facilities. The employer has attempted to reassure the workers at the ten non-union data processing facilities that none of their facilities will be closed or suffer a major reduction-in-force in the immediately foreseeable future, but it has warned the non-union employees that unionization could price them out of competitiveness. Analyze the union s strategic options, and recommend the course of action which would afford the greatest prospect of success for the union. If there is additional information your clients could obtain which would improve your strategic planning, identify it and indicate how it would be useful.

6 Labor Law Professor Weiss Page 6 of 8 Q. II. (75 minutes) You are Chief Counsel to the Labor and Employment Committee of the U.S. Senate. The Senate is considering a bi-partisan compromise package of amendments to the NLRA. For reasons of legislative procedure, the bill must be voted up or down as a whole, without amendments. Several elements of the bill are largely drawn from Canadian provincial labor statutes. The five key provisions are outlined below: (1) Card Check Certification When a labor union petitions for NLRB certification as the exclusive collective bargaining agent of an employer s employees in an appropriate bargaining unit, it will have the option to submit to the NLRB union authorization cards signed by 65% or more of the employees in the proposed bargaining unit. This would entitle the union to be certified by the NLRB. Thereupon, the employer would be immediately subject to the duty to bargain in good faith with the union. The NLRB regional staff investigating the petition would verify the validity of all employee signatures, ensure that in fact, at least 65% of the employees in the proposed bargaining unit had signed properly worded authorization cards, and would rule on the cards of any employees whose eligibility to be in the bargaining unit was challenged by the employer. A union could still obtain an NLRB-conducted representation election if it submitted authorization cards signed by at least 30% of the employees in the bargaining unit, in accordance with procedures available under present law. Certification based upon a 65% card check would be unavailable in any case in which an incumbent union already had been lawfully recognized by the employer based on actual proof that the union had the support of a majority of employees in the bargaining unit, or whenever two or more labor unions simultaneously had pending NLRB petitions to represent employees in overlapping bargaining units. In such cases, recognition could only be obtained on the basis of an NLRB-conducted election, in accordance with procedures available under present law.

7 Labor Law Professor Weiss Page 7 of 8 (2) NLRB Rulemaking to Establish Appropriate Bargaining Units The NLRB would be required to conduct a rulemaking proceeding similar to the one it conducted in the healthcare industry. On the basis of the rulemaking proceeding, the NLRB would have to issue regulations establishing presumptively appropriate bargaining units in all other industries and occupations. Thereafter, if a labor union petitioned for certification in a presumptively appropriate bargaining unit, the employer could contest the propriety of the unit only after submitting evidence establishing that facts pertaining to the employer s unique organizational structure, work organization, or economic situation, warranted a deviation from the usual rule covering that industry or set of occupations. (3) Abbreviated Representation Proceeding Adjudicatory Procedures Once certification was issued, either based on a 65% card check or on the results of an NLRB-conducted election, the election results would bar future representation proceedings for one year. Both employer and labor union would have the right to challenge the representation petition-related determinations of the NLRB Regional Director to the NLRB, including the certification of the outcome. Decisions of the NLRB, however, would be final and binding. Much like arbitration cases under present U.S. law, NLRB representation case decisions could be reviewed or enforced in federal district court, in a summary judgment proceeding. The standard of review would be the narrowest possible, permitting the court to set aside the NLRB s certification of the outcome only if the legal interpretation failed to draw its essence from the NLRA as a whole, or the record was devoid of evidentiary support for the facts found by the NLRB, or upon proof of bias or corruption of the tribunal. The district court order enforcing an NLRB certification would transform an employer s subsequent failure to recognize the union into a proper subject for citation for contempt of court. (4) Additional Restrictions on Recognitional Strikes or Picketing A labor union which petitions for card check recognition under the 65% supermajority procedure would be prohibited from picketing or striking for recognition pending the final NLRB decision in the representation proceeding.

8 Labor Law Professor Weiss Page 8 of 8 (5) Repeal of 8(a)(2) Section 8(a)(2) of the NLRA would be repealed in its entirety. Note: All other provisions of the statute would remain unchanged. As Chief Counsel for the Senate committee, write a report for the committee evaluating the bill. First, consider the changes that each of these provisions, separately and together, would make in the existing practice and procedure under the NLRA on the same topics. Next, consider how these changes taken as a whole, would alter the entire structure and operation of the statute. On the basis of your analysis, conclude your report by recommending whether or not the Senate should adopt this package of amendments. Remember, the bill must be voted up or down as a whole, without modification. End of Examination!!!