Labor Law Outline
Part I: Evolution of Labor Relations Laws
I. Jurisdiction, Organization, and Procedure of the NLRB
A. Beginnings:
1. Unequal bargaining power
a. 1935, more monopoly concerns, more trusts
b. NLRA wasn’t concerned about small businesses – this was an industrial act
2. Middle of the Great Depression
a. §151(d): People don’t have money, they can’t buy anything, the whole economy will go down
3. People were worried that the Wagner Act would be passed then be found unconstitutional
B. Code Sections of NLRA: (NLRA Section 2 – 29 U.S.C. §152)
1. §2: Definitional section
2. §7: Employee rights
3. §8: Enforcement of the rights in §7
a. §8(a)(1): alleged violations; §8(a)(3): disc based on union membership
4. §9: Elections
5. §§10-11: Set up NLRB and establish groundwork for agency
C. Overview of NLRB
1. How is it set up?
a. NLRB has exclusive jurisdiction. If you file a claim under §8(a)(1), you can’t bring it in state court, you have to file charge w/ the NLRB
2. Split into two sections:
a. General Counsel (prosecutorial) – will initiate the action. They investigate and prosecute
i. D.C. office of the GC advise the GC on matters
· But, also have 51 regional and sub-regional offices
ii. These offices have regional directors, field agents, supervisory field attorneys, field attorneys, etc
b. The Board: Can be divided into two groups: the 5-member body in D.C. Also refers to the entire agency
i. Subject to senatorial approval
ii. But can get caught up in political wrangling – if the Board members are not members of the same party as the Senate majority
iii. Typically a 3-2 split. 3 of president’s party, 2 of others
· Usually works out Republicans = Mgmt; Dems = Union
iv. This is the side that adjudicates
v. ALJs act as judges
· They don’t have lifetime tenure
· But, in some ways they are more powerful than state and fed judges, they are the fact finders as well as the law finders
c. In representation cases, regional directors put on the hat of the adjudicate side
i. Regional directors also act as prosecutors
D. The Life of a Case
1. If an employee believes there has been an unfair labor practice, they file a charge with the Regional Office
2. Next, there will be an investigation – regional agent will sit down w/ EE, get them to sign affidavit
a. Regional agent will also interview the employer – employer doesn’t have to give office everything they have
3. Regional Director might decide to dismiss the case, if there aren’t any grounds
a. If its dismissed, it’s dismissed – can’t try to bring it again
b. If it’s a tricky case, regional office might send it down to GC’s office
4. Or, the RD will bring a complaint
a. However, most of the time, the complaints are settled before reaching the ALJ
5. If complaint issued, it is brought and you have a hearing before the ALJ
a. Proceeds much like a trial
b. NLRB has the burden of proof
6. ALJ either finds in favor of Board or in favor of ER
7. The GC or the ER can then appeal to the Board (5-member)
a. If the Board dismisses, the GC can’t appeal beyond the Board (it stops – can’t appeal to appeals court)
b. If Board grants relief, then can appeal to a US Court of Appeals and even up to the US Supreme Court
c. But, the ER can appeal at any time – not bound by the Board
8. Notes about the Board and the Circuits
a. Jurisdiction
i. There are some instances where the Board and the Circuits get into disagreements (b/c the Cir think they are above the Board)
ii. Circuits’ attitude can be that they will turn down Board’s orders until the S.C. tells them not to
iii. Technically, the Board makes the law, but the Cirs and the Supreme Court both have a lot of say
E. Jurisdiction:
1. Concern whether Congress, legislative body could pass big law that covers everyone (how can they have sweeping power over all those employees?)
2. NLRA and NLRB called into attention that there are certain businesses that they don’t need to regulate
3. Board has two primary self-limiting standards (1958)
a. Retail concerns: $50,000 annual gross volume of business
b. Non-retail companies (e.g. manuf): $50,000 annual outflow or inflow, direct or indirect
c. Inflow/Outflow – buying or selling (see notes) – $50K in one or the other
i. Direct or indirect: if indirect it’s still good
d. These limits have become much more meaningless – attempts to increase limits (to account for inflation) but the limits haven’t increased
F. Exclusions:
1. §152(3): Excluded employees
a. Employed by parent or spouse, independent contractors, and supervisors)
2. NLRA – independent contractors
a. Not originally excluded – added to the exclusion w/ the Taft-Hartley act in 1947
b. Why wouldn’t we want independent contractors to form a union?
i. Price-fixing, anti-trust, monopoly
ii. Labor law exempts groups of EEs (unions) from anti-trust laws
c. If we start applying labor law statutes to independent Kors then they might start to be able to get out of anti-trust – end up with monopoly
G. Independent Contractors – Example of the law being changed
1. So, how do you decide who is an independent contractor?
a. Start with Common Law of Agency – multi-factor test. Rest Agency §220
2. Ten different factors used in determining whether one is acting for another as an employee or an independent contractor.
a. Extent of controlwhich, by the agreement, the master may exercise over the details of the work
b. Whether or not the one employed is engaged in a distinct occupation or business
c. Kind of occupation…is the work is usually done under the direction of the ER or by a specialist without supervision?
d. Skill required in the particular occupation
e. Whether the ER or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work
f. Length of time for which the person is employed
g. Method of payment, whether by the time or by the job
h. Whether or not the work is part of the regular business of the ER
i. Whether or not the parties believe they are creating the relation of ER-EE
j. Whether the principal is or is not in the business
3. Right of Control – most important factor (“The Control Test”)
4. In the United Insurance case, Justice Black says that all factors need to be considered
a. In most cases, right to control test would be the most important.
b. But in the independent contractor case, all factors are weighted equally
5. Differences:
a. If you have a boss, more likely that you’re an EE.
b. If you have customers, more likely independent contractor
c. Really isn’t’ that clear-cut
6. Board has changed it into multi-factual test – calls it “total factual context”
7. Roadway case: Board looks at the drivers – they are essential to the function of the regular operations of the business (factor “h”)
a. The truck drivers look like Roadway EEs
b. Don’t have a lot of time to do outside work – not entrepreneurial
8. Board differentiates b/w Dial-a-Mattress and Roadway case
a. Dial a Mattress: the owner operators were different
H. Supervisors
1. Definition of a Supervisor, §2(11):
a. The term “supervisor” means any individual having authority, in the interest of the employer, (1) to hire, (2) transfer, (3) suspend, (4) lay off, (5) recall, (6) promote, (7) disch
t explicitly exempted.
iii. Traditional master-servant relationship is work—graduate assistants are paid for their work, and there is an absence of any academic credit for these services.
iv. The fact that they may gain educational benefit is not necessarily inconsistent with employee status.
v. The Bd rejected the Employer’s claim about infringement of academic freedom—it was based on pure speculation.
9. Brown University: The Bd returned to its pre-NYU stance, holding that graduate assistants who perform services for their university, which are integral to the achievement of their degree, are NOT employees.
a. TA’s, RA’s, and proctors receive money from the university, but so do fellows who do not perform any services = the services are not related to the money received; it is not consideration for work.
i. Brown represents this payment as financial aid – the amount of money received twice a month is the same regardless of the # of hours spent performing services.
ii. The source of the money is Brown’s financial aid department, not the instructional budget.
b. NOTE: Even if the grad students were considered statutory employees, the Bd could still exclude them for policy reasons.
i. This reasoning will be flipped in Oakwood
Part II: Establishing the Collective Bargaining Relationship
I. Protecting the Right to Self-Organization
A. In General, the Purpose of the NLRA:
1. §7 protects the right of EEs to band together to form unions, to bargain collectively, and to engage in other concerted activities
2. §8(a) and 8(e) protect EE organizational rights
a. §8(a)(1) makes it an ULP for an ER to “interfere with, restrain, or coerce EEs in the exercise of the rights guaranteed in §7”
3. Conduct short of an ULP may be enough to set aside an election if it inhibits choice and upsets the required “laboratory conditions” for elections
4. The Excelsior List: Board wants to make sure all info is available to all parties
a. Within seven days after Regional Director has approved consent-election agreement entered into by the parties or after R.D. or Board has directed an election, the ER must file w/ R.D. an election eligibility list
b. List will contain names and addresses of all eligible voters
c. R.D. will make all this info available to all parties in the case
B. Access to the ER’s Property for Campaign Purposes
1. ER Restrictions on Access by Non-EE Union Organizers
a. Babcock & Wilcox: ER denied access to parking lot to non-EE union organizers
i. If the location of plant and living quarters of the EEs place the EEs beyond reach of reasonable union efforts to communicate, ER must allow union to approach his EEs
ii. Balancing act: EE’s §7 right to hear union message, against property rights of ER
iii. Rule: ER may prohibit solicitation or distribution by non-EE organizers anywhere on company property, provided the union has other reasonable means of communicating with the ER
b. Jean Country: Board said there would be a balancing test again
