LABOR LAW

1
LABOR LAW

• The National Labor Relations Act

2
INTRODUCTION

• Labor law involves collective bargaining between
  employers employees
• The theory is that it is easier better for both
  sides if employer only has to contend with
  representative of the group and not negotiate
  with each employee individually.
• As non-farming labor class grew in this country,
  modern labor problems developed.
• A great deal of tension has existed between
  laborers those who own or manage businesses.

3
Businesses used four means of controlling early
unionization efforts

• Criminal conspiracy laws
• Injunctions
• Antitrust laws
• Constitutional challenges

4
Early Labor Laws

• W.W.Is need for uninterrupted production made
  preventing wartime strikes critical.
• The National War Labor Board was convened to
  peacefully resolve labor disputes.
• Later, in response to the Depression, Congress
  enacted the National Industrial Recovery Act
  (Later declared unconstitutional by the Supreme
  Court in 1935).

5
The system laws that have developed have one
objective industrial peace

• This is accomplished through the use of
• Collective bargaining
• Sample Collective Bargaining Agreements
• Arbitration
• Originally it was an alternative to strikes
• Today it is probably an alternative to litigation
• During W.W. II 73 of all CBAs contained a
  provision for no strike grievance arbitration
• Rights are enforceable by law for economic
  struggles between employer employees, as
  developed and interpreted by a federal labor
  agency

6
Grievance arbitration

• CBA is the collective bargaining agreement
• Includes terms of employment, working conditions,
  seniority rules, etc., and usually a procedure
  for resolving disputes.
• If one side violates the CBA, the other side
  files a grievance.
• The CBA usually provides for the dispute to be
  resolved through binding arbitration, and
  includes an agreement not to strike over the
  matter.
• If the violation effects an employee, he/she is
  the grievant, and is represented by the union at
  the arbitration.

7

• Alternatively, violations of federal law are
  usually taken before the National Labor Relations
  Board.

8
You should understand these terms

• Arbitration
• Grievance arbitration
• Collective bargaining agreement or CBA
• Union
• Bargaining unit
• Strike
• Boycott
• Yellow dog contract

9
LABOR LAW

• Four main federal laws are the statutory basis
  for labor law and unionization
• Norris-LaGuardia Act of 1932
• Wagner Act of 1935
• Taft-Hartley Act
• Landrum-Griffin Act of 1959

10
The Norris-LaGuardia Act

• Endorsed collective bargaining as a matter of
  public policy
• Curtailed use of the injunction
• Made yellow dog contracts unenforceable
• Prohibited restraint of strikes and picketing
• Permitted relief funds from union to strikers and
  publication of labor disputes
• Injunctions could only be issued if an open-court
  hearing was held that established that unlawful
  act had been threatened or committed and would be
  or would continue to be committed unless
  restraints were order.

11
The Wagner/NationalLabor Relations Act

• Mainstay of seminal labor legislation
• Established National Labor Relations Board to
  enforce labor laws in the private sector
• Gave both judicial and remedial powers to NLRB
• Guarantees employees the right to engage in
  concerted activities for mutual aid or protection

12
The Wagner/NationalLabor Relations Act

• Allowed for the certification and decertification
  of unions
• Shop stewards are intermediaries between union
  and employer
• Industrial unions are unions with branches at
  particular workplaces
• Business agents represent union members
  interests at a given jobsite
• Employers must bargain in good faith
• Unions have duty of fair representation
• Prohibits other unfair labor practices
• Permits certain strikes and lockouts as well as
  picketing

13
The Taft-Hartley Act

• Enacted as an amendment to Wagner Act to curb
  excesses by unions
• Subordinated rights of employers, employees and
  unions to public health, safety and interest
• Identified unfair labor practices committed by
  unions
• Recognized right of employee to refrain from
  concerted activity

14
The Taft-Hartley Act

• Outlawed closed shops
• Employee must become a member of the union to
  obtain a job
• Allowed for agency shops and union shops
• Agency shops require nonunion members to pay
  union dues
• Union shops require employees to join the union
  with a certain amount of time after becoming
  employed
• Permitted right-to-work laws

15
The Landrum-Griffin Act

• Labor Management Reporting and Disclosure Act
• Enacted in response to union corruption
• Provided a bill of rights for union members
• Provided procedures for conduction of union
  elections
• Provided for safeguarding of union funds

16
Organization of the Board

• http//www.nlrb.gov/nlrb/legal/manuals/rules/organ
  ization.pdf

17
NLRB handles two types of cases

• Those alleging that an unfair labor practice has
  taken place in violation of the act
• Representation questions concerning whether how
  employees will be represented for collective
  bargaining
• Board does not initiate these cases.

18
UNFAIR LABOR PRACTICE PROCEDURE

• http//www.nlrb.gov/publications/manuals/ulp_caseh
  andling_manual_(I).aspx

19
REPRESENTATION ELECTIONS

• http//www.nlrb.gov/publications/manuals/r_-_case_
  outline.aspx

20
JURISDICTION

• In commerce or affecting commerce
• NLRB can regulate labor disputes in virtually any
  company , unless the firms contact with
  interstate commerce is de minimus (ex., real
  estate brokerage business).
• Jurisdiction is set in terms of the dollar volume
  of business that a firm does annually

21
EXCLUDED EMPLOYERS

• Federal, state, or municipal corporations
• Federal reserve banks
• Railroad companies under RLA, airline, related
  companies
• Labor organizations in their representative
  capacity

22
JUDICIAL EXCLUSIONS

• Foreign crews on foreign vessels temporarily in
  U.S. ports (unless it involves American
  residents).
• Organizations devoted principally to the
  promulgation of the faith of a religion.
• See NLRB v. Catholic Bishop of Chicago.

23
EXEMPTED EMPLOYEES

• Agricultural laborers
• Domestics within a persons home
• Employed by parent or spouse
• Independent contractors
• Supervisor
• Those subject to RLA

24
SUPERVISOR

• Individual having authority, in the interest of
  the employer, to hire , transfer, suspend,
  layoff, recall, promote, discharge, assign,
  reward, or discipline other employees
• Or responsibly direct other employees
• Or to adjust their grievances
• Or effectively to recommend such action
• The exercise of authority must not be of a
  routine or clerical nature, but requires the use
  of independent judgment.

25
NLRB v. Kentucky Community Care, Inc.532 U.S.
706 (2001)

• Carpenters Union petitioned to represent a single
  unit of 110 potentially eligible employees at
  residential care facility for persons suffering
  from mental retardation or mental illness.
• The Care Home objected to the inclusion of 6
  registered nurses in the bargaining unit, arguing
  that they were supervisors
• The union was elected, and the Home refused to
  bargain with them.
• The NLRBs General Counsel filed an unfair labor
  practice complaint.

26

• See also, Oakwood Healthcare, Inc.
• 348 NLRB no. 37 (9/29/06)
• NLRB cases

27
MANAGERIAL EMPLOYEES

• Excluded not because of statutory language but
  because of Board policy approved by the Supreme
  Court.
• They formulate, determine, effectuate an
  employers policies.
• Are full-time faculty members professional or
  managerial employees? See NLRB v. Yeshiva
  University.

28
PREEMPTION

• Supremacy clause Federal Law is the supreme law
  of the land.
• Has federal law preempted the labor field so that
  there can be no state laws? No.
• State courts must defer to the exclusive
  competence of the NLRB in cases in which the
  activity is subject to the protections of 7 or
  the prohibitions of 8 of the NLRA.
• The legal theory must be similar to that which
  would have been presented to the NLRB, and the
  party has not done so.
• Where the activity is of overriding state action,
  the courts have allowed state action.

29
BARGAINING

• 7 of the NLRA entitles employees to bargain
  collectively through representatives of their own
  choosing.
• The union as exclusive bargaining agent
  supercedes any individual contracts.

30
CHOICE OF BARGAINING AGENT

• A petition from an interested party is need to
  initiate a board-sponsored election
• Union or group must represent at 30 of the
  employee group support the request.
  (Forty-eight-hour rule.)
• Form for Petition
• http//www.nlrb.gov/nlrb/shared_files/forms/nlrbfo
  rm502.pdf

31
A Board agent investigates to determine if the
following exist

• Employers operations affect interstate commerce
• A question about representation actually exists.
• The proposed bargaining unit is appropriate.
• The petitioning union has garnered a 30 showing
  of interest.

32
BARRING AN ELECTION

• Contract bar rule
• Exceptions
• Open season prior to expiration of current CBA
• A contract for longer than 3 years will operate
  only as a bar to an election for 3 years.
• 9 when a valid election has been held, no new
  election can be held for a 12-month period.

33
THE APPROPRIATE BARGAINING UNIT

• Definition left to Boards discretion
• The decision as to what is the appropriate unit
  is rarely disturbed.
• The goal is to assure the employees the fullest
  freedom in exercising rights guaranteed by the
  Act.

34
9 guidelines

• The options include an employer wide unit, a
  craft unit, a single-plant unit or subdivision
  thereof.
• Unit cannot contain both professional or
  nonprofessional employees, unless a majority of
  the professionals have voted to be included.
• A craft unit cannot be found to be inappropriate
  simply because a different unit was established
  by a previous board.

35
9 guidelines

• A unit containing nonsecurity employees cannot
  include security employees, and vice versa.
• The extent to which employees have already been
  organized is not controlling of the boards
  definition of appropriate bargaining unit.

36
Board factors

• Interest concerning wages, hours, working
  conditions, the nature of duties performed,
  skills, training or qualifications required
• Geographical physical proximity of included
  workers
• Prior history that tends to prove that a workable
  relationship exists.
• Similarity of the unit to the employers
  administrative or territorial divisions
  frequency of employee interchange
• The desires of employees.

37
CERTIFICATION PROCEDURES

• Representation petition with regional office of
  NLRB
• 30 of employees must demonstrate they want an
  election
• One valid election in a 12-month period.
• Employer may also file petition.
• Election usually occurs within 60 days of filing
  the petition.

38
DECERTIFICATION PROCEDURES

• To determine if union continues to represent a
  majority of employees in the bargaining unit.
• Must be supported by 30 of employees
• Employers cannot start the decertification process

39
PREELECTION BOARD RULES

• Employer may not
• Interfere or coerce
• Make threats or promise benefits
• Violation of Board rule (set aside election) vs.
  violation of the Act (unfair labor practice).
• Boards preelection rules
• No electioneering activities at polling places
• 24-hour rule
• Excelsior list provide list of eligible voters

40
FREE SPEECH

• The expressing of any views, argument, or
  opinionshall not constitute or be evidence of an
  unfair labor practiceif such provision contains
  no threat of reprisal or force or promise of
  benefit.

41
NO-SOLICITATION RULES

• Union solicitation
• May be prohibited during work periods
• May prohibit for legitimate efficiency safety
  reasons exist
• May not manifestly intend to impede rights under
  the law
• Employees may distribute a newsletter
• Solicitation rights may not be waived in CBA.

42
PROPAGANDA MISREPRESENTATIONS

• See North American Directory Corp. v. NLRB.
• Union wanted to organize plants production
  Maintenance employees
• The day before the election workers received in
  the mail a memo on what appeared to be company
  letterhead.
• The memo contrasted an attempt to reduce workers
  salaries with the Vice Presidents salary.
• Following the election results, the company filed
  an objection alleging that the forged voters
  confused voters

43
REMEDIES

• Temporary
• 10(j) Board may seek injunction in unfair labor
  practice cases
• 10(l) Board is required to seek injunction where
  there is a secondary boycott, hot cargo
  agreement, recognitional picketing,
  jurisdictional disputes
• Courts relieved from Norris-LaGuardia in these
  situations
• Final
• Cease and desist order, and affirmative actions
• Board may petition the Court of Appeals to
  enforce, and other party may petition Court of
  Appeal to review the Board order.

44
OTHER BOARD ORDERS

• Reinstatement
• Back pay
• Order to bargain about wages, hours, working
  conditions, but may not order party to agree to
  specific contractual terms
• Union must post notice it will cease desist
  unfair labor practice.