I. Work Without Unions – What Do Unions Do?
a. Congress used the Commerce Clause to pass the NLRA
b. Purposes:
i. Sec. 1: Congress wants the law to restore equality in bargaining power btw employee/employer; stabilization of economic power; give right to organize to employees that employers already have (indicts law for allowing corporate law, which created unequal bargaining power if you deny the same right to employees).
II. Concerted Activities – NLRA Protections in the Absence of Unions
a. NLRA §7 – Rights of Employees
i. Employees shall have the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).
b. NLRA §8(a)(1) – Unfair Labor Practices
i. It shall be an unfair labor practice for an employer – to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7
c. Test for “concerted activities:”
i. Is manner of action concerted? (Look for linkage btw 2+ employees)
1. In the Phillips case he talks to fellow employees, is asked by union rep to speak up.
2. Mushroom Transport Doctrine: fellow employees don’t have to agree in order to be concerted.
3. In Georgia, the actions of reporting are concerted because it was four employees who got together
4. In Washington Aluminum it is concerted b/c they walked out together
5. In Joliff, one employee writes a letter on behalf of employees, letter is signed “dock workers and drivers.”
ii. What is the purpose of the action (mutual aid of protection, self organization, or collective bargaining)?
1. In Phillips, it’s mutual aid and protection because he wants to ensure FMLA rights for workers
2. In Georgia, it’s mutual protection because they don’t want to get fired because they knew about the fraud and did nothing
3. In Washington Aluminum, its about mutual aid and protection in protesting about working conditions
4. In Joliff, it’s about better working conditions (routes, worklogs, safety) and terms of employment (health insurance), protection of jobs (illegal logs could make them lose their jobs)
iii. Has the employee engaged in any actions which remove protection?
1. In Phillips, employer argues that the things that removed NLRA protections were his prior minor infractions; and that he was probationary employee, but just because you are at-will does not mean that you can be fired for unlawful reasons
2. In Georgia, the employer argues that by going outside corporate channels, they lost their protection
3. In Washington Aluminum, the employer argues that walking out of the job was extreme. The Court argues that their standard was workable for lay people who don’t know all of their rights. Also, there is this issue of disloyalty and insubordination as perceived by the employer (this is the case in most of these cases)
4. In Joliff the employer argues that they lied in the letter about their conditions with malice. Court: if there were mistakes, they weren’t with malice
5. Joliff: Factors that a court must consider in determining whether a statement is protected hyperbole or is capable of carrying a defamatory meaning:
a. The common usage or meaning of the allegedly defamatory works themselves, whether they are commonly understood to be loose, figurative, or hyperbolic words
b. The degree to which the statements are verifiable, whether the statements is objectively capable of proof or disproof
c. The immediate context in which the statements
d. The broader social context into which the statement fits
iv. Did the employer discharge the employees because of the protected concerted activities
1. Employer must have known about PCA
2. Must show evidence of motivation (timing, pretext, other statements and actions)
3. Look at the facts surrounding the discharge to find intent (inconsistency btw works and behavior; derogatory statements about employee protected activities
d. Remedies for violations of employee’s right to PCA:
i. Affirmative Remedies
1. Reinstatement of employee; back-pay and restoration of benefits; expunging record of detrimental facts
ii. Cease and Desist Orders
1. Notice posting order. Some people say that these are useless
III. Organizing a Union – Law and Process – Issues: scope and composition of the unit
a. Whether a requested bargaining unit is “an appropriate bargaining unit” (composition)
i. Bargaining unit consists of the group of jobs that define the electorate for the representation election
ii. Test for determining whether there is a community of interests: (1) how similar are the would-be unit members; (2) what are the connections among the would-be unit members; and (3) whether a strike by a smaller of the proposed units could shut down production for the other parts of the firm as well.
iii. F
et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
iii. (11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
1. Test for supervisor
a. Employees are statutory supervisors if (1) they hold the authority to engage in any one of the twelve listed supervisory functions, (2) their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment, and (3) their authority is held ‘in the interest of the employer
2. The question of whether or not an employee is a supervisor has received a great deal of attention given the vague meaning of some of the terms in this definition. Here are some clarifications from Oakwood:
a. Assign: the act of designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties. It refers to the designation of significant overall duties to an employee, no to the… ad hoc instruction that the employee perform a discrete task
b. Evaluate: evaluation must, by itself, affect the wages and/or job status of the employee being evaluated
c. Responsibility to Direct: If a person on the shop floor has men under him and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, prvided that the direction is both ‘responsible’ and carried out with independent judgment. Responsible direction involves a finding of accountability, i.e., there are adverse consequences for the putative supervisor arising from his/her direction of other employees.
d. Independent Judgment: (1) to independent, the judgment must not be effectively controlled by another authority (instructions or regulations); (2) the degree of discretion exercised must rise above the “routine or clerical” in order to be “independent judgment.”
