1. Introduction and Brief Historical Perspective: Review of NLRA
a. The Meaning of Concerted Activity and the Collective Bargaining Agreement
i. NLRB v. Washington Aluminum
1. Section 7 protected employees who walked out due to cold temperatures in the factory
2. Workers reasonableness in the decision is irrelevant, and section 7 is broad enough to protect concerted activity before, after or at the same time a demand is made
3. Concerted activity includes two or more people acting together, even if, as here there is no union in place to address problems
ii. NLRA Section 1
1. Policy of the US is to eliminate the causes of obstruction to free flow of commerce by encouraging the practice of collective bargaining and by protecting workers rights to freedom of association
2. Protection by law of the rights of employees to organize and bargain collectively safeguards commerce from injury
iii. NLRA Section 7
1. Employees can self organize, form, assist, join unions, engage in other concerted activity for the purpose of collective bargaining and have the right to refrain from such activity
iv. NLRA Section 8(a)(1)
1. It is an unfair labor practice for an employer to interfere with employees in the exercise of section 7 rights
v. Intro notes
1. No penalty for bargaining in bad faith, only must go back and bargain in good faith
2. Cases take a long time to work through
a. Routinely can take 6 years from being fired to get to a court of appeals, making the remedy of reinstatement ineffective, especially since back pay can be reduced by what was earned in the mean time
b. The NLRA, Its Origins and Administration
i. The Enactment of the Norris LaGuardia Act
1. The use of injunctions by businesses to strip the rights of employees was a great concern around the passage of this act in 1932
2. Criticism focused on the “objectives test”
a. Under this the courts decided according to their views of social and economic policy the question whether the employees’ demands justified their combining to inflict injury on the employer
b. Yellow dog contracts, under which employees had to agree not to join a union were also criticized at the time
ii. Norris LaGuardia Act
1. The act removed jurisdiction from Federal Courts to issue injunctions with some narrow exceptions
iii. The Wagner Act
1. Origins and Constitutionality
a. Railway Labor Act
i. Emphasis in the act was on the peaceful resolution of disputes
ii. Duties were placed on both sides, and a mediation board was formed
2. The Wagner Act
a. Established on a permanent foundation the right of employees to organize and bargain collectively through representatives of their own choosing
b. Section 7 is the core of the act, and Section 8 lists the unfair labor practices
c. 8(a)(3) makes it unlawful to fire someone for union activity if there is discriminatory intent
d. Section 9 goes into the selection process (designated or selected)
e. Section 8 case
i. Regional Office Investigation leads to a complaint or dismissal
ii. If a complaint – Administrative Law Judgment (full blow trial at the location)
iii. Appeal to the Board
iv. Appeal to the Court of appeals
1. Deferential for review of factual findings
2. Chevron standard for legal findings
a. Good as long as a valid interpretation
f. NLRB is divided so that General Counsel is separated from administrative law judges
iv. The Taft Hartley Act
1. Changed the NLRB to a strictly neutral body, from one favoring unions
2. Was bitterly opposed by organized labor, and passed over a veto from Truman
3. Many saw the danger of nationwide work stoppages and were concerned about the increased power of labor
4. Legacy today
a. Abandoned the notion that the law has no role to play in handling labor disputes
b. Labor injunction was revived in a restricted way to eliminate abuses such as violence and intimidation, secondary boycotts, strikes to compel unfair labor practices
c. Carried forward the fundamental rights to organize and bargain collectively, but ushered in period of changed govt. attitude towards unions
i. For example section 7 now gives right not to join a union
v. The Landrum-Griffin Act
1. Closed some loopholes, and was in line with Taft Hartley
vi. Jurisprudence, Organization and Procedure of the NLRB
1. NLRB Jurisdiction
a. Large segments of the workforce not covered under the act
b. Enterprises: Covered and Excluded
i. Court seemed to extend the act to the full limit of its constitutional power, by including every business that affects commerce (after Wickard this will be most employers)
ii. Board has declared that employers must engage directly or indirectly in interstate commerce to an extent exceeding a prescribed dollar amount in order to be subject to its jurisdiction
iii. Through the cumulative effect of limits of constitutional power, and limits put in place by the board several million employees have been left out
c. Excluded Employers
i. Most significant group of excluded employers is the public employers
1. Most of these employees though have similar rights through other means
d. Excluded Employees
i. Agricultural employees not included and neither are undocumented alien workers (ag workers governed by individual states)
ii. Independent contractors are not included and make up about 7% of the workforce
iii. Board generally applies a “right to control” test
iv. Supervisors also excluded which includes
1. 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…
v. Managerial employees
1. Not expressly included in the act, but by the common law they are excluded
2. Yeshiva case
a. Controversial case found that full time faculty at a large university were all “managerial” employees and thus outside the protection of the act
2. NLRB Organization and Procedure
a. Intro
i. Adjudicative responsibilities of the “board” are ultimately entrusted to the five members of the Board, appointed by the President for five year terms with the consent of the senate
b. Unfair Labor Practice Cases
i. THE General Council can issue a complaint only upon a formal charge that the employer or union has engaged in an unfair labor practice
ii. If the preliminary investigation discloses that the charge is without foundation, the case is likely to be dropped
iii. Overwhelming number of unfair labor practice cases are dealt with in the Regional offices
iv. Upon issuance of a complaint, the Board may petition the district court, under section 10(j) of the act, for appropriate interlocutory relief, preventing continuance of the unfair labor practice
1. Rarely sought though
v. Once the complaint is filed a hearing is held by the Administrative Law Judge, who prepares a decision containing proposed findings of fact, and recommendations for the disposition of the case
1. If no exceptions are filed the Board usually adopts the decision of the ALJ
vi. Only a small number of cases receive full consideration from the members themselves
vii. If the respondent does not comply with a board order, the Board must secure enforcement by filing a petition in a federal court of appeals
1. In reviewing an order issued by the board, the courts must accept the Board’s finding of fact, “if supported by substantial evidence on the record considered as a whole”
2. Chevron standard applies to administrative agencies decisions on statutory interpretation
c. Representation Cases
i. Regional office also plays an important role in processing representation cases as well
ii. Investigates the petition to determine questions such as if the employer is under the Act, and if the group of employees constitute an appropriate bargaining unit
iii. Board’s agents supervise the election process
iv. In recent years unions have been avoiding the board and the delays attendant to the electoral process seeking instead to voluntary recognition through card check agreements with employers to secure bargaining rights
3. A concluding reflection on the Contemporary Situation of the NLRB
a. As an administrative agency, the NLRB has considerable latitude in construing the labor act
vii. The NLRA
1. NLRB v. Kentucky River Community Care
a. Burden of proving supervisory status is correctly placed on the party claiming that the employee is a supervisor
b. 3 part test in 2(11) determines if an employee is a supervisor and here the issue was over the part that says “their exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment”
c. The board rejected proof of supervisory status with respect to directing patient care because employees do not use “independent judgment” when they exercise “ordinary professional or technical judgment in directing less skilled employees to deliver services in accordance with employer-specified standards
i. This interpretation, by distinguishing different kinds of judgment, introduces a categorical exclusion into
d lawful, and the burden will be on the General Counsel to demonstrate that the union is seriously incapacitated from communicating with employees by other means
e. Giving access to a union may be a remedy for a violation of 8(a)(1) or (3)
f. “Captive Audience” speech
i. Speeches employees are required to attend while working
ii. Under the Peerless Plywood rule, such speeches are banned by either side within 24 hours of an election
2. Excelsior Underwear, Inc.
a. Employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters, and this information shall be made available to all parties in the case
i. Gives union equal opportunity to contact voters
ii. Cuts down on the unknown challenges during the election
3. Notes
a. Under this decision a union does not have access to email addresses
4. NLRB v. Wyman Gordon
a. Challenged Excelsior since it was not the proper rule making procedure, but it was decided that an adjudication can be a rule
v. Election Propaganda
1. Threats of Reprisal
a. Intro
i. Involves two inconsistent goals
1. Freedom of expression and full freedom of employees to join a union
ii. Difficult to announce in any general terms any principle that will in all cases fairly adjust the competing interests of free speech and uncoerced employee choice
iii. Under the Wagner Act
1. Employers were expected to be neutral, but this belief was considered dubious when tested against the first amendment
iv. 1947 enacting of Section 8(c)
1. Employer expression not unfair labor practice unless it contains a threat of reprisal of force of a promise of some benefit
v. The General Shoe, Laboratory Conditions Test
1. Conduct that creates an atmosphere which renders improbable a free choice will sometimes warrant invalidating an election, even though that conduct may not constitute an unfair labor practice
2. In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees
a. When in the rare extreme case, the standard drops too low, because of our fault or the fault of others, the requisite laboratory conditions are note present and the experiment must be conducted over again
3. Laboratory conditions begin when the election petition is filed, and last to the election
b. NLRB v. Gissel Packing
i. Company warned employees of the dangers of a strike if the union came in, and union lost election after appearing to have a good majority
ii. An employer is free to communicate to his employees any of his general views about unionism so long as the communications do not contain a “threat of reprisal”
1. He may even make a prediction on the success of the union, but must be carefully phrased based on objective fact
iii. Employer’s statement were not cast as a prediction but rather as a threat of retaliatory action
iv. Test
1. Must be carefully phrased on objective facts
2. Consequences must be beyond the employers control
2. Factual Misrepresentations
a. Intro
i. Misstatements can range from innocent, minor misstatements weeks before the election, to purposeful deceit on the eve of an election
ii. Statements may lack any threat of reprisal and thus be protected under 9(c)
b. Midland National v. Local 304, United Food and Commercial Workers
