Modern Labor Legislation
Railway Labor Act
History:
roots in Interstate Commerce Act (1887), enacted in 1926. RLA contained a duty to make a reasonable effort to reach an agreement and to resolve differences, established Board to mediate—powerless to resolve deadlock, gave union right to appoint representative. 1936 Amendment established the NRAB- an agency compromised of carrier and union reps to adjust grievances and disputes arising out of interpretations of agreements.
RLA covers RR and Airline employees — 1970s Congress removed federal regulatory authority over the rates charged and route of entry in air/trucking carriers.
National Labor Relations Act (NLRA)
Wagner Act of 1935:
NIRA, predecessor of NLRA, a new deal program, set minimum wage/max hours and right to collectively bargain, NLB to conduct hearings but had no enforcement authority. Held unconstitutional, violative of Commerce Clause (Schechter Poultry). Legacy — need for strong agency w/ enforcement authority, principle of exclusive representation.
Concerns that it would be struck down as violative of Commerce Clause, however upheld in Jones & Laughlin (1937) b/c labor regulation has a “close and substantial relation to interstate commerce”
§ 1 — Purposes — prevention of industrial strife, redressing inequality of bargaining power and wage rates, restoring workers’ purchasing power.
i. Assumes inequality of bargaining power will be restored by collective bargaining.
§ 7 — Right to collectively bargain (practice and procedure)
§ 8 — specified “unfair labor practices”
§ 10 — NLRB groundwork
Taft-Hartley Act of 1947: reaction to widespread strikes and perception of abuse of union power. Shift in tone from Wagner Act, more neutral position between labor and management.
Landrum Griffin Act of 1959: at peak of unionization in U.S., concern re: union corruption, measures to regulate the internal affairs of labor orgs.
1974 Health Care Industry Amendments: extend NLRA jurisdiction to nonprofit health care institutions, special rules for resolution of dispute in health care.
1977 Failed Reform: indicative of political difficulty in passing labor legislation.
NLRB Structure
General Counsel(prosecutorial branch)
Has DC office (which has a number of divisions)
51 Regional and sub-regional offices, within which there is a hierarchy of Directors, supervisory attorneys, field attorneys and field investigators.
NLRA §3(d)—establishes position of GC
Board (NLRA §3)
Exclusive jurisdiction in cases involving NLRA
5 person adjudicatory body (often victim of political wrangling)
i. appointed by Pres. w/ advice and consent of Senate
ii. 5 year term
iii. Traditionally, a 3-2 split in membership, 3 Board members from Pres.’s party.
iv. ALJs civil service employees (non-Art III judges), fact-finders
1. often write a detailed opinion, making credibility determinations
v. In representation decisions, Regional Directors may function as an adjudicator.
NLRB Procedure
Unfair Labor Practice Proceedings (§8(a))
Individual/union files ULP “charge” with Regional Office (need not have union to bring 8A(1) claim)
Investigation: Board’s investigatory powers set forth in NLRA §11 (individual affidavits, Board has limited subpoena powers)
Regional Director may dismiss or issue complaint
ALJ “hearing“
i. NLRB v. Employer, like trial, NLRB has burden of proof, the ALJ will dismissed or grant relief
Appeal to 5 member Board
i. IF Board dismisses the appeal, then GC cannot appeal.
ii. But, if the Board grants relief, the employer may appeal to U.S. Ct. of App. (Board does not consider Cir. Cts its “supervisor”), then to S.C.
iii. NOTE — may be settled at any time
iv. NOTE — backlog at Board level b/c it receives nationwide appeals.
v. NOTE — Employer may appeal to any Circuit where act occurred, any Circuit where have business presence or to D.C. Circuit. Leads to “circuit shopping”
Representation Proceedings
At regional level, less Board review b/c of volume of representation cases.
Board only reviews where “substantial question of law or policy is presented
Rulemaking vs. Adjudication—2 ways to make policy
Adjudication: case-by-case decision making.
i. Rulemaking: pursuant to APA, agency publishes notice of proposed rulemaking in Fed. Register, an opportunity for public comment, after 30-days adopted. Same procedure to rescind.
ii. NLRB makes its policy almost exclusively through adjudication.
Scope of Review of NLRB Determinations
.a “Substantial Evidence” Review:
.i NLRA §10(e) provides “findings of the board w/ respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” Universal Camera—highly deferential to Board determinations.
.1 Applies to questions of “pure fact”—conduct of specific parties involved in the case (who did what, when, how, why)
.2 Applies to “mixed” questions of law and fact—application of law to facts, Fall River Dyeing & Finishing Co.
.ii Chevron Review of questions of Law or Policy—great deference to Agency’s policymaking authority either explicitly or implicitly delegated to the agency by Congress. Courts will uphold agency interpretation if “reasonable” and not in conflict with express language of the statute
NLRB Jurisdiction
Employer Size: Commerce Clause and self-limitations
Retail concerns: $500,000 annual gross volume of business
Non-retail companies: $50,000 annual outflow/inflow (interstate), OR direct or indirect (ship to retailer X in state and X ships out)
Rationale: in response to Commerce Clause concerns (federalism). Note—if an employer is not regulated here, then likely to be regulated under state/local labor regulations
Note: includes foreign companies doing business in the U.S., but excludes American citizens employed by American companies outside the U.S.
Statutory Exclusions
Agricultural laborers
Domestic Service, i.e. in the home
RLA covered employees
Government employees
i. Difficult to distinguish employees of private companies who contract with the gov’t.
ii. Management Training– overruled Res-Care inquiry (whether private employer controlled essential terms such that it was capable of engaging in meaningful collective bargaining), held that the Board would assert jurisdiction over the private employer as long as it met the statutory definition of “employer” under NLRA §2(2) and the monetary thresholds.
Independent Contractors — NLRA §2(3)
i. Not further defined in NLRA
ii. Not originally excluded in 1935 Act, but excluded in Taft-Hartley Amendments as a reaction to “newsboys” case (Hearst), where SC upheld Board’s finding that news venders were statutory employee
iii. United Insurance Co.(U.S.S.C., J. Black, 1968), p. 113: Company contended that 3,300 debit agents who collected premiums, prevented lapsing of policies and sold new policies were Ind. Contractors and refused a union certified by Board. SC rev’d, upheld Board’s determination. *Defer to common law to determine who is falls with the IC exclusion; All 10 factors should be weighed equally, multi-factor, “total factual context” (typically right to control is the key factor), gives the Board more discretion. Distinguishable from “right to control test” where the question is merely whether employer controlled the “manner and means by which the job is done.”
1. Master- Servant (Agency) 10 Factor Test
a. The extent of control which, 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. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the ER or by a specialist without supervision
d. The 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. The length of time for which the person is employed
g. The 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 believes they are creating the relation of master and servant
j. Whether the principal is or is not in the business
iv. Roadway Package System, Inc. —Board applies the multi-factor test set forth in United Insurance, Factors of RSTMT 220(2). “Right to Control” is just one of several factors. Drivers are employees b/c Board points out that delivery is Railway’s central, essential business, display Railway signage/uniform, rate of compensation, company training.
v. Dial-A-Mattress — companion case to Roadway, owner operators (drivers) were independent contractors where no training and no requirements regarding
dents/Trainees as Employees
Cedars-Sinai Medical Center: The Bd held that “house staff” (interns, residents, and fellows) were NOT employees w/in the meaning of §2(3) because they were “primarily students.” However, this was reconsidered.
Boston Medical Center: The Bd OVERRULED Cedars-Sinai, holding that while “house staff” may be students, they are also statutory employees.
i. There no specific exclusion in §2(3) for students
ii. The house staff were compensated for their services
iii. They spent a large % of their time providing patient care.
iv. The Act’s definition of “professional employee” expressly includes those who have completed their coursework and are performing related work in an institution of higher learning or in a hospital.
v. NOTE: This decision overturned long-standing precedent
Graduate Teaching Assistants
New York University: The Bd held that the university’s graduate teaching assistants were statutory employees.
i. The Act broadly defined “employee” to include “any employee
ii. This group was not explicitly exempted.
iii. Traditional master-servant relationship is work—graduate assistants get 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. The Bd rejected the Employer’s claim about infringement of academic freedom—it was based on pure speculation.
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.
NYU turned over 25 years of precedent.
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. 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. The source of the money is Brown’s financial aid department, not the instructional budget.
The student’s services are part and parcel of the core elements of the PhD program = teaching is so integral to obtaining the degree that they will not receive the degree w/o teaching.
The Bd is worried about the university’s academic freedom = it does not want to disturb the student-teacher relationship. The university should be the one deciding who gets admitted and who can teach.
The dissent takes issue with this argument by the majority:
i. CBA’s are being created at other schools
ii. Labor disputes are common in the university context, and the policy of the Act—protecting freedom of association—apply equally in the university context.
iii. The Act does not compel agreement.
1. NOTE: Even if the grad students were considered statutory employees, the Bd could still exclude them for policy reasons. Here, take a look at the approaches by the majority and the dissent:
.1 Majority: Looks to the policy
.2 Dissent: Looks to the wording of the statute and the common law of agency; argued that the majority never addressed the language of §2(3).
[This reasoning will be flipped in Oakwood]
3.Supervisors
Oakwood Healthcare, Inc. (2006): The Bd held that certain charge nurses were “supervisors” under the Act and were therefore excluded from its protection.
i. Rule: A §2(11) Supervisor:
1. Holds the authority to engage in any 1 of the 12 supervisory functions OR to effectively recommend such AND
