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Labor Law
St. Johns University School of Law
Fernbach, Karen P.

LABOR LAW
FALL 2015
Professor Fernbach
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
NLRB ORGANIZATION & BASICS
Overview of the NLRB
The NLRB: (1) Conducts Elections; (2) Investigates Unfair Labor Practice Charges; (3) Facilitates Settlements; (4) Decides Cases &; (5) Enforces Orders
Large numbers of Employees are exempted from NLRA by special categories.
Exempt employers include: U.S. government, Federal Reserve Banks, States and their political subdivisions, RRs and airlines are subject to the Railway Labor Act; state, local and municipal governments
To be covered by the NLRA, ERs must engage in interstate commerce (directly or indirectly)
The Board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level.Over the years, it has established standards for asserting jurisdiction
The Board has statutory jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. Over the years, it has established standards for asserting jurisdiction, which are described below. As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws.
NLRB Organization
: NLRB has 5 members in DC, with a chair; there can be no more than 3 persons from each political party; members have staggered 5 year terms
About 30 regional offices nationwide, 3000 EEs nationwide
Board handles about 30,000 complaints annually (mostly ULPs)
Administers several thousand elections annually
Two Functions of the NLRB
Decide whether a particular challenged activity constitutes an Unfair Labor Practice as described in §8 of The Act
After complaint has been filed, primary investigation will be made to determine whether to proceed to a hearing after regional directors has issued a complaint
To force compliance with a Board order, must file petition with federal court of appeals.
Conduct & Supervise Representation Elections- §9b of The Act
A petition must be filed w/ the NLRB showing interest in the union from at least 30% of employees.
NLRB will then investigate to make sure the Board has jurisdiction, the union is qualified, & there are no existing labor contracts that would bar the election.
Judicial Review
Board orders are reviewed by the court of appeals – where courts must accept the Board’s findings of fact if supported by substantial evidence on the record considered as a whole
Courts may not freely substitute their own judgment for the Board’s. However, it doesn’t have to approve findings that the judges consider unreasonable.
More deferential than usual judicial review
“Chevron Deference”: endorsed substantial appellate deference to the agency
NLRB PROCEDURES
Unfair Labor Practice Procedure
FORMAL CHARGE FILED:
A union or employer must first file a formal charge alleging that the employer or union has engaged in an unfair labor practice. “Any person,” in the office for the region, in which the alleged unfair labor practice occurred, may file this charge.
The charge must be filed and served on the charged party within 6 months of the alleged unfair labor practice. (10(b))
When the charge is filed, the Regional Director normally requires the person making the charge to submit the supporting evidence in the forms of affidavits, lists of witnesses, etc.
The charged party will then be asked to reply and a Field Examiner or Attorney will make a thorough investigation of the facts and surrounding circumstances.
 
If the preliminary investigation discloses that the charge is without foundation, the case is likely to be dropped; if not settlement is attempted (most settle); if settlement cannot be reached- formal proceedings are commenced by the filing of a complaint
 
After completing an investigation, if the Regional Director has reasonable cause to believe a violation has occurred then he or she issues a complaint
Upon issuance of a complaint, the Board may petition the district court, under 10(j), for appropriate interlocutory relief preventing continuance of an ULP- discriminatory discharges, recognition of minority unions, & bad faith bargaining
The Regional Attorney or a member of his staff drafts the complaint; the complaint specifies the violation of the Act, which the respondent is alleged, to have committed and contains a notice of the time and place of the hearing.
HEARING BEFORE ALJ:
The issuance of a complaint leads to a hearing before an NLRB Administrative Law Judge (unless there is settlement)
An attorney from the Regional Office prosecutes the case for the Board. The charging party is permitted to intervene, and its attorneys may take part in the proceeding.
After the hearing the ALJ prepares a decision containing proposed findings and recommendations for the disposition of the case; decision is then filed with the Board
Exceptions may be filed and submitted to NLRB Board members for review
If the respondent does not comply w/ the Board order, the Board must secure enforcement by filing a petition in federal court of appeals
In reviewing an order issued by the NLRB, courts must accept the Board’s finding of fact “if supported by substantial evidence on the record considered as a whole.” (Section 10(f)—CHEVRON DEFERENCE
Representation Case Procedure
*This is the NLRB’s day-to-day role- processing representation cases
Election Petitions are filed in the Regional Office, and the bulk of these seek the holding of a representation election in order to determine the desires of the employees concerning the selection of a union for collective bargaining.
Other elections may be held to decertify a union already representing employees in bargaining- 9(c)(1)(A)(ii)
Such representation proceedings may be filed either by an employer [RM PETITION] upon whom a demand has been made,
Or by a union seeking to represent employees by demonstrating a “showing of interest” from 30% of the employees within the bargaining unit, generally evidenced by signed cards authorizing that the union to be the bargaining agent
Petition sets forth the name of the employer and the petitioning union, the size and composition of the unit claimed to be appropriate, and the name of any competing union.
Avoid NLRB expenditure of money and personnel in cases in which no certification is likely to result.
The Regional staff investigates the petition, in order to determine such questions as whether the employer and the union are covered by the NLRA and whether the group of employees within which the election is sought constitutes “an appropriate bargaining unit.”
Most of the time these issues are resolved through the consent of the parties
If the above matters are contested, there will be a hearing conducted by a hearing officer from the Regional Office.
The transcript of the hearing is then sent to the Regional Director who makes decisions on the Board’s jurisdiction, appropriate bargaining unit, and eligibility of the voters
Election issued by the Regional Director- typically about 6 weeks after the election petition was filed- and an election is ordered within a designated bargaining unit within a specified period, usually 25 to 30 days from the date of the election order
– if the union has filed an election petition, an employer must disclose names and addresses of all employees within 7 days. BUT, you still need 30% before election petition
15% of employees need to show up on election day- the union only needs a majority to win
Elections are usually held on the employer’s premises
Votes may be challenged, and if the challenges cannot be resolved informally the ballots will be set aside.  If there are enough challenged votes to affect the outcome of the election, a ruling on the disputed ballots will be made by the Regional Director who will also pass on any other objections which the parties may have taken to the election.
Union Wins:
Becomes the 9(a) Representative- the exclusive representative of all the employees for purposes of collective bargaining
Once election results are certified, the NLRB signs a formal certification
Employer can allege a ULP has occurred and have the election set aside with a new one ordered
Employer can seek review by the NLRB???
Union Loses:
If the union loses, the NLRB certifies the results and the union cannot come back for one year
Union can allege ULP and have the election set aside and re-ordered
Selection of the Bargaining Representative
Voluntary Recognition
An Employer can’t interfere or assist with the creation or operation of a labor union. When union tells an Employer it has the support of a majority of the EE’s in a bargaining unit, the ER has 3 options:
To voluntarily recognize the union as the exclusive representative
To file a petition for an election (see NLRB Procedures)
To wait for the union to file a petition (see NLRM Procedures)
The employer CANNOT recognize a union when a union doesn’t have a majority (need the cards). If they do recognize the union, they are committing an unfair labor practice.
Voluntary RecognitionàThe employer CAN recognize a union, which has a majority before a valid election petition is filed. Once an election petition is filed, the ER must refrain from recognizing any of the rival unions.
Once the employer agrees to look at the cards, you have committed to voluntarily recognize them if there is a majority. You have a lawful right to refuse to look at them and demand they file a petition for election with the NLRB
 “An employer’s voluntary recognition of a union, based on a showing of the union’s majority status, bars an election petition for a reasonable period of time.” That “reasonable period of time” is no less than six months and no more than one year after the parties’ first bargaining session (Lamons Gasket decision).
In determining whether a reasonable period of time has elapsed, the NLRB will look at various factors first enunciated in Lee Lumber & Building Material Corp., (not req. reading) including:
Whether the parties are bargaining over an initial contract;
The complexity of the bargaining process

ustrial relations”)Contracts may cease to operate as a bar when changes in circumstances occurred due to expansion or changes in the employer’s operations.I.e. if there is less than 30% of the existing staff working for the employer when the K in question was executed or if less than 50% of the current job classifications existed on the date of execution, or a merger of facilities if substantially all new people are hired or create an entirely new operation (General Extrusion)For contract bar near the expiration of the contract term:There is an “open” period beginning 90 days before the agreement expires and ending 60 days before expiration (or 90 to 60 days before the end of the 3rd year of a contract whose term exceeds three years), at which point an insulated period begins. Petitions filed before or after this period are untimely. A collective bargaining agreement containing a “union security clause” is no bar to an election.You have to have been employed prior to the last payroll being filed and You have to be employed on the date of election 
 
Employers Covered by the NLRA
Employees Exempted from the NLRA
(1) Retailors
gross annual volume of business [i.e. employers in the amusement industry, apartment houses, casinos, hotels, restaurants] $100,000 for shopping centers & office buildings
 
(2) Non-Retailors
Based on amount of goods sold or services provided by the employer out of state / annual inflow or outflow must be @ least $50,000
 
(3) Special Categories
Channels of interstate commerce- shipping companies- minimum $50,000
 
Health care & child care institutions: gross volume of at least $250,000 / nursing homes- $100,000
 
Law Firms- $250,000 gross annual income
 
Educational Centers- private & non-profit colleges, art museums- annual minimum is $1 million
 
Federal Contractors- private contractors who work for the federal government
 
Religious Organization- if it does not have a religious character (healthcare institution)
 
Indian Tribes- if they do not carry out traditional tribal governmental functions
(1) Agricultural Laborers
(2) Independent Contractors
: Look to see if person follows orders, uses own tools, uses own discretion to do the work, etc. (think cleaning ladies – once you start following orders and living on the premises, you are an EE)- “right of control” test
 
(3) Supervisory Employees – Excluded by §2(11)
A supervisor is one who has authority, in the interest of the Employer, to hire, fire, transfer, suspend, discipline, etc. other EEs
Some ERs will bump up Employees to supervisors to avoid unionization
Supervisors have indirect protection – can’t be disciplined for testifying before the Board in a way ER doesn’t like, for refusing to commit a ULP, etc.
 
(3) Managerial Employees
A common law exclusion – no specific provision – people who make company policy
Yeshiva University- fulltime faculty were managerial employees outside the scope of the NLRA
Not supervisors b/c they do not look over other employees, just manage shit
bc fails to take into account degree of diffusion of responsibility in workplace
 
(4) Confidential Employees
No Specific exclusion, but they are excluded. Employees who have access to confidential labor-relations information
 
(6) Secondary Schools operated by the Roman Catholic Church (Catholic Bishop)
 
(7) Undocumented aliens (Sure-Tan, Inc.)
 
Section 2(2)
(5) Federal, state and local governments, including public schools, libraries, and parks, Federal Reserve banks, and wholly owned government corporations.
 
(6) Employers subject to the Railway Labor Act, such as interstate railroads and airlines
A rival union or decertification petitioner must file its petition not more than 90 days and not less than 60 days before the termination of the contract. / Any employee or group of employees may file a petition alleging that a substantial amount number of employees assert that a majority in the bargaining unit do not wish to be represented by the collective bargaining representative currently certified or informally recognized by the employer.