1. THE JURISDICTION, STRUCTURE, AND PROCEDURE OF THE NLRB
1(A). A Brief Overview of NLRB Structure and Procedure
1(A)(i). The Board and the General Counsel
I. NLRB – 5 Washington members (typically 3/2 political parties – 1 chair).
a. Regions – head of region is Regional Director (not a political appointment – hired job) – works for Board and Regional Counsel.
II. General Counsel – separate from Board – GC issues complaints and NLRB deals with them.
1(A)(ii). Unfair Labor Practice and Representation Proceedings – given no private right of action, NLRB works primarily in two areas:
I. §8 – Unfair Labor Practices (ULP, “complaint” proceedings) – procedure: 1)appeal to Regional Director by employees (can decide to issue complaint); 2)litigation in Regional office (Regional Counsel represents gov.); 3)ALJ (employee of Board but paid by OMB) makes finding of fact and law based on Board law; 4)passes to NLRB which may adopt ALJ’s reasoning or take account of the exceptions (General Counsel represents gov.); 5)NLRB order is not self-enforcing – needs to be enforced by Court of Appeals (§10(e)); 6)party may contest Board ruling with the circuit where the ULP occurred, the DC Circuit, or any circuit where the party resides or does business (NLRA §10(f)) – possibility of circuit shopping.
a. Preliminary Injunctive Relief – §10(l) – for §§8(b)(4)(A-C),(b)(7),(e) – so called mandatory injunction – regional director must go to district court if he has “reasonable cause” to believe in violation (can proceed without NLRB OK) – §10(j) for all other ULPs, requires NLRB authorization to obtain temporary relief of restraining order.
b. Remedies – §10(c) – allows taking of “affirmative action” to remedy.
II. §9 – Representation Proceeding (“nonadversary” – parties only “advise” Regional Director who advises Board and ex parte communications between parties is allowed) – requires filing a petition.
a. Petitions: most common type is where union seeks representation authority through election (what Brown is about) – many issues can be brought up (§9(b)): 1)appropriate bargaining unit; 2)who is a part of the unit and gets to vote (look at “community of interests;” 3)who is excluded from the unit; 4)are there people ineligible to vote under the statute; 5)where/when is election held?
i. Other petitions: 1)decertification by employer (“individual…acting in their behalf”) or employees (§9(c)(1)(A(ii)); 2)employer claim that more than one labor org. wants to be rep. (§9(c)(1)(B)).
b. Procedure: 1)commenced at Regional level; 2)Regional Board grants review only where there is a substantial question of law or policy (decision in such a case is not real a violation of NLRA and amounts to more of a warning); 3)given “nonadversary” nature, can’t appeal decision, need to convert it into a ULP proceeding – §9(d) says that record in representation proceeding becomes record in ULP proceeding (therefore, need to raise all relevant issues in rep. proceeding – §10(f) appeal to Court of Appeals).
1(A)(iii). Rulemaking Versus Adjudication – two procedures for making policy:
I. Adjudication – case-by-case decision making as done by courts (either by ALJs or the Board if appealed to them).
II. §6 – Rulemaking – Board given power to make and amend rules in carrying out the Act (used very rarely) – under APA, NLRB must first issue notice or proposed rulemaking and provide opportunity for public comment.
a. Bell Aerospace Co. – USSC upheld the idea that the Board can use either form of policymaking whenever it chose.
b. Pros of rulemaking: 1)forces dialogue between agency and public; 2)keeps things consistent by wiping out old law; 3)allows the public to participate in the process; 4)limits power of General Counsel.
1(B). Scope of Review of NLRB Determinations – Standard of review depends on nature of the issue in dispute.
1(B)(i). “Substantial Evidence” Standard – §10(e) – questions of fact, if supported by substantial evidence on the record as a whole, will be conclusive – provides significant deference to agency findings of fact – applies to two different kinds of Board determinations: 1)Pure factual findings – adjudicative facts – questions regarding conduct of specific party involved in the case (who did what, where, when…); 2)Mixed questions of fact and law – see below (ex. whether someone is a “student” depends on legal definition of “employee” as applied to what they do).
1(B)(ii). Review of Questions of “Law” and “Policy” – “discretionary judgments” – apply decision in Chevron v. NRDC – court confronts two questions: 1)Step 1 – has Congress directly spoken on the issue in question? Textual analysis; 2)Step 2 – if Congress’s intent is not explicit, court sees whether agency’s answer is based on permissible construction of the statute (court does not substitute its own judgment).
I. Under Step 2: 1)agency decision need only be “reasonable” rather than the only decision that could have been reached; 2)defer to agency because: a)Congress left the gap in the law for a reason (to let the agency fill it); b)agency has specialized knowledge on the issue; c)policy choices better made by agencies which are directly accountable to people through President.
II. Mixed Question (same as above) – two step analysis: 1)is agency using proper test/proper legal standard; 2)if it is, is it applying this standard to a proper set of facts?
III. Questions of Policy – zone of reversible policy making discretion (a certain area within which the agency can move around and change their minds about an issue – ex. seatbelt regulations) – once court has determined what margin the agency has for discretions, agency is allowed to make policy decisions within this area.
1(C)(i). The Commerce Requirement and Other Limitations on NLRB Jurisdiction – §§10(a), 9(c)(1), 1 – NLRB’s jurisdiction extends to cases “affecting commerce” as defined in §2(7) – Board self-limited itself in 1958, saying that commerce only applied where: 1)retail concerns have at least $500,000 annual business; 2)nonretail companies (ex. manufacturing) have at least a $50,000 annual outflow or inflow, direct or indirect.
I. Religiously-Operated Activities – NLRB v. Catholic Bishop of Chicago – prevented the Board from dealing with any religiously-operated activity that involves employees (interference with 1st Amendment).
II. Foreign Employee and Company Jurisdiction – no jurisdiction over American citizens who are permanently employed outside of US by American companies although employees in temporary assignment abroad are still covered – jurisdiction over foreign companies doing business in US.
1(C)(ii). Statutory Exclusions – §2(3) definition of “employee” – Taft-Hartley adds exclusions for:
I. Independent Contractors (§2(3)) – Congress found distinction between “employees” who do a job for a wage, and “independent contractors.”
a. Tests for “Independent Contractor” Status: 1)right to control (from Restatement of Agency) – does employee have a right to control the manner and means by which the job is done?; 2)economic realit
fidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.”
i. Labor Nexus Requirement – NLRB v. Hendricks – exclusion only applies to those who have access to confidential information that is labor-related (labor nexus) – therefore those who have access only to confidential business information are not excluded.
III. Professional Employees (§2(12)) (ex. nurses) – typically covered by the Act – creates tension with the exclusions since very often, professional employees have supervisory roles, but this is often tied to their professional role, but only when they perform a supervisory function not linked to their professional role do they fall under the §2(11) exclusion – although USSC three times rejected attempts by the Board to broadly define professionals as nonmanagerial or nonsupervisory:
a. NLRB v. Yeshiva – found full-time faculty employees to be “managerial” but said that this doesn’t mean they should be excluded as managerial under the Act unless “their activities fall outside the scope of duties routinely performed by similarly situated professionals” (§2(11)).
b. NLRB v. Health Care & Retirement Corp. of Am. – LPNs’ were excluded supervisors because direction of less-skilled employees was done in the “interest of the employer” in relation to determining their supervisory status ( §2(11)).
c. NLRB v. Kentucky River Community Care, Inc. – Court rejected argument that RNs were not supervisors because they didn’t “exercise independent judgment” (§2(11)) – “independent judgment” must be applied the same way to all 12 of the listed supervisory functions in §2(11), regardless of whether the employees were professionals.
IV. Students as Employees? §2(3) does not specifically exclude students who work for the school but since 1976, the Board said they were “primarily students” and therefore not covered.
a. New York University – Board determined that graduate TAs should be considered statutory employees – even though they only worked 15% of the time, this just pointed to the idea that they were part-time rather than full-time employees – also pointed out that teaching was not a prerequisite to getting their degree (in many departments).
b. Brown University – overturn NYU decision on grounds that being a TA was inexorably linked to degree requirements and the role of employee could not be distinguished from the role of a student in the TA position – job was not economical, but rather educational in nature.
2. PROTECTION OF CONCERTED ACTIVITY
2(A). The Concepts of Discrimination and of Interference, Restraint, or Coercion – two different kinds of violations:
2(A)(i). Violations Based on Employer (or Union) Motivation – usually revolves around §8(a)(3) for employers and §8(b)(2) for unions – similar to Title VII except that discrimination is tied to union activity.