(iv) Respondents did not violate 29 U.S.C. § 158(a)(5) § 8(a)(5) requires the employer to "bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). The employer must approach the collective bargaining with "a good faith intention or a 'real desire' to come into agreement.

U.S.C. § 158(a)(1), (3). Section 8 also specifically prohibits an employer from “discharge[ing] or otherwise discriminat[ing] against an employee because he has filed charges [with Case 2:17-cv-01160-GW-KS Document 9 Filed 02/21/17 Page 15 of 22 Page ID #:122 4848-7938-6947.2 6 DEFENDANT SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the NLRB] under this subchapter.” 29 U.S.C. § 158(a)(4). Under the doctrine of preemption articulated in Garmon, the Supreme Court held that the NLRA preempts any cause of action concerning conduct the NLRA actually or arguably prohibits or protects, even if such claims constitute a tort under state law.

In choosing not to revoke the agreement, the employee, not the employer, is the party who elects to not exercise rights guaranteed under Section 7. See 29 U.S.C. § 158(a)(1) ("It shall be an unfair labor practice for an employer . . . .") (emphasis added). When an employee voluntarily enters into an arbitration agreement and is free to choose between these two options, and there are no consequences attached to either choice, Section 8(a)(1) can reasonably be construed against deeming this an unfair labor practice.

Though the NLRA’s analysis of Norris- LaGuardia is not itself entitled to deference, its analysis of the NLRA concerned nearly identical Case 7:12-cv-04844-VB Document 10 Filed 09/25/12 Page 24 of 33 18 language. Compare 29 U.S.C. § 158(a)(1) (“It shall be an unfair labor practice for an employer . .

Section 8 of the NLRA defines "unfair labor practices" and provides, in part: The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual fonn, shall not constitute or be evidence ofan unfair labor practice under any ofthe provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. 29 U.S.C. § 158(c) (emphasis added). By its terms, section 8(c) states that an employer's speech is not "evidence of an unfair labor practice."

C 01-1628-VRW or work on any goods, articles, materials, or commodities or to perform any services.” 29 U.S.C. § 158 (b)(4). Thus, the only “peace” actually promised by the Card Check Rule is a union’s agreement not to engage in activity that is already prohibited by existing law.

Specifically, Local 370 suggests Section 8(a)(3) of the NLRA expressly permits a union and an employer to enter into an agreement (such as the fee service agreement Local 370 seeks) that requires all Case 4:15-cv-00500-EJL-CWD Document 43 Filed 10/24/16 Page 17 of 27 MEMORANDUM DECISION AND ORDER - 18 employees, regardless of union membership, to pay a fee that covers the cost of the union’s representation. 29 U.S.C. § 158(a)(3). Local 370 argues “[c]ontrary to Section 8(a)(3), Idaho Code § 44-2003(3) criminalizes any such agreement.

at 662 (quoting Int’l Ass’n of Machinists v. Gonzales, 356 U.S. 617, 620 (1958)); cf. id. at 664 (citing 29 U.S.C. § 158(b)(2) (“It shall be an unfair labor practice for a labor organization or its agents . . . to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.”)).

According to Lloyd, the holding in Logan Valley did not turn on the fact that the shopping center 4 As noted above (fn.5, ante), the Union’s only legitimate purpose for picketing at Foods Co is to encourage a boycott by its customers (the time having long passedsince it could legitimately picket to force Foods Co to recognize it — that is, for it to force Foods Co to become a union shop). (29 U.S.C. § 158 (b)(7)(C).) The rules applied to union organizing on private property apply afortiori to a union boycott.

Plaintiffs’ claim that International Paper counseled preferred employees on methods to obtain severance pay is, at most, a claim that International Paper violated Section 8(a)(5) of the National Labor Relations Act, which states that that it is an unfair labor practice for an employer to: “refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Violations of Section 8(a)(5) are within the exclusive jurisdiction of the National Case 1:01-cv-00301-HJW-JS Document 63 Filed 02/06/2004 Page 18 of 21 19 Labor Relations Board.