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Labor Law
John Marshall Law School, Chicago
Livingston, Bradford

Labor Law
Fall 2012
Deitelberg & Livingston
Election procedures and unit determination
1.       Voluntarily recognized by employer
2.       Secret election
Private Sector – union membership down, now 7%, 50% in 1950’s.   Why?  Seniority based protection: modern employees more mobile.  Not interested in stability/benefits that unions offer. 
3 major acts: 
Taft Hartley – increased board from 3 to 5 members. 
Landham Griffin
History:  Freedom to associate=criminal conspiracy.
Injunctions:  no juries to appeal to.  
Norris-LaGuardia Act:  1. Outlawed “Yellow Dog” contracts.  Employers cannot insist as a condition of employment that employees agree not to organize. 
2. Prohibits injunctions:  gets federal cts out of injunctions (mostly), but unions can still be enjoined from illegal behavior. 
Taft Hartley – 1. increased board from 3 to 5 members.
2. Created union ULPs.  Ex:  good faith bargaining. 
Sec 9 created union security provisions
How to conduct proper elections
Bargaining units.
Basis for modern appellate jurisdiction.
Allows states to enact rt to work legislation
Restrictions on secondary boycott activity.
Labor Mgmt Recording & Disclosure Act – 1959 “On the Waterfront Era”  addresses union corruption. 
Economic pressure: Strike (labor) Lockout (management)
CA has Agricultural Labor Relations Act
NLRA – Section 1 policies
Procedure:  Union files petition w/ NLRB to unionize. 
NLRB sets hearing
Goes to Regional Director hearing
Co files request to revire w/NLRB
NLRB makes decision/ if certifies, employer can refuse to bargain.
Union files ULP
2006- Oakwood Health Care RNs
Question:  “assign” people are supervisors if assign areas, tasks.
“responsibly directing” responsible for other employees.
NOT independent if detailed by policy.  10-15% of time – regularly pattern v. sporadic
Non statutory exemptions;
Confidential – as relates to Labor Relations policy (Small group)
80-85% of NLRB decisions are decided 3-0 or 2-1.
5 members, 1 chair.  Delegation of powers. 
General Counsel: final authority to issue complaints. 
Sec 6 – Rulemaking Authority: 
After NLRB, then appellate ct.  NLRB sees that is law for that case, not law for them unless Sup Ct. 
Sec 8 ULP
(c) free speech proviso?
Labor Management Relations Act
Allows presidential injunctions during national emergencies. 
Sect 301: Suits by & against labor organizations (ex; duty of fair representation cases)
Sect 302: Prohibited Financial Transactions
Meyers: relying on Alleluiah
Meyers II: 2 different claims:
1. statutory right – some evidence in concert
2.  under collective bargaining agreement – we know it is covered. 
Purely personal – no
More than one – concerted.
Guides for political activity:  mutual aid & protection – must involve working conditions.
Underlying policies: Meyers is good law.
Lafayette: basis of all claims potential “chilling effect” of employees in exercising their sect 7 rts.  “Rules of Civility”. 
GC memo on social media:  specify what sec 7 rights are. 
Protected conduct.  Look at social media memo in light of Heritage & Lafayette Park
Register Guard
9-12-12  Free Choice – Sec 7
Protected Concerted Activity
Organizing process – appropriate bargaining units
Sec 7 & 8c rts. 
2 ways:  Sec 8 ULP
Sec 9 Regulating Organizing activity.  Pay attention to differences. 
*** EXAM***8(a) 5 components.  8 (a)(1) is the catchall.  If violation of other Sect 8, they are also a violation of 8(a)(1)! (interfering w/ exercise of sec 7 rts)
8(b)(1)(a) ULP’s for unions. 
Closed shop.  Must be union member (exception for construction)
Open shop:  rt to work states – benefit of bargaining w/out paying dues. 
Sec 9 – election conduct- NLRB assumes authority to regulate election. 
When does speech cross the line to become threat?  Must have support for statements about how company is doing poorly.  P, 190 note 1.  DTR Indu

  Yes if goes beyond past practice. 
General statements-we always liked to work w/ our employees…OK
What if history of making discretionary changes?  Must be careful to be consistent.
Interrogation:  some degree questioning is allowed.
Borne:  if not threatening in and of itself, conduct taken into consideration. 
Bumper stickers, buttons,
Johnny’s Poultry:  if collecting information in response to a NLRB complaint.  Must provide paperwork. Must be relative to complaint.Cant interfere w/ employees statutory rights.
Polling:  general bar on interrogation.   No legit purpose if election is pending. 
Exception: health care workers giving notice to strike.  Employer can ask who is participating to plan for patient care. 
Surveillance/photography.General presumption-NO.Chilling effect.
Star in videos; no rewards or punishment. 
Threatening lawsuit-no
Actually filing- ok if in good faith.
Unions usually seek 70% support before filing
50% plus one of those who actually vote, not of eligible employees
If employer, and you don’t think there is 30% support, not much can be done. 
After petition is filed, employer receives notice.  Hearing usually held within 7 days
Admin rule: no later than 42 days after petition is filed.
Hours of election depends on number of employees & shift changes.  Cannot be held right by management areas.
 May do mail ballot election if employees are scattered.  Ex: transportation.  Or phone in vote. 
If parties can’t work out details of election, there will be hearing at regional board. Appeal rights to board in DC.