Labor Law (Professor Moore-Duncan) Fall 2016
General Course Overview
NIRA: National Institute Recovery Act
Enacted as a method for infusing the economy and business production
Result was a significant increase in Union activity
Roosevelt created the NLB (National Labor Board)
Ultimately declared unconstitutional
Wagner Act (1935):
Intent was to provide employee bargaining power in negotiations with employees
Protect potential obstruction to interstate commerce (such as strikes)
Test to Determine whether it is a public employer.
Who is an employee? Section 2
What are the employees’ rights? Section 7
What are unfair labor practices
Section 8(a): Employer unfair practices
Section 8(b): Union unfair practice
Section 8(c) page 57: Free Speech provision
Employer has right to voice its opinion so long as it doesn’t contain a threat or promise
Section 9(b): Process for beginning a petition
Strike at Peeps in Review
Economic v. Unfair Labor Practice
Unfair labor practice
Employer can hire temporary employees but NOT permanent
Economic Strike
It is permissible to hire permanent replacements
Employees have the right to return to the extent that the position has not been permanently filled
No strike provision would die with the end of the contract
Jurisdiction of the NLRB
Where can they assert jurisdiction
Statutory
Discretionary
Plenary
Construed to all conduct that may be Constitutionally regulated under the Commerce Clause of the Constitution
Board has established standards based on:
Volume
Type of work
Board does not oversee “Horse Racing”
The board also uses category to group “employers”
Non-Retail
Siemons (122 NLRB 81)
$50,000 Annually
Direct and Indirect
Outflow and Inflow
Retail
Applies to when you sell to purchaser who desires to satisfy his own personal wants/needs
$500,000 annually
Must be across state lines to ensure statutory jurisdiction
Instrumentalities of Commerce
Truckers
$50,000 Annually from their operations
National Defense
Obtain a certain amount of monies from the government
Plenary
Business in DC covered by NRLB
Labor Groups
When acting as an employer as defined under 2.2, subject to the same NLRB jurisdiction
Board may assert jurisdiction even where the employer doesn’t meet the standards set out above
8.A4 complaints
Indian Employers
2004 case brought the Indian employers under jurisdiction for commercial enterprises on the Indian reservations
Law Firms
$250,000 in gross revenues
Charter Schools
Test to apply to whether this is a political subdivision or not
NLRB v. Natural Gas Hawkins County 402 US 600
Two prong test
Created directly by the state
Administered by individuals responsible to the public or general electorate
Chicago Mathematics Charter School (2012)
Board adopts that they would not adopt bright line rule; rather apply Hawkins County
NLRB did have coverage
Pennsylvania Charter Schools 364 #87
Evaluating the facts
Unfair Labor Practice
Unfair labor charge must be filed within 6 months of the action
If for a promulgation of new rule or actionà6 months after implementation
If for an ongoing actàmay be used
Protected Concerted Activity
What is concerted activity
Multiple employees working in concert with each other
Conc
interview.
The employer has reached a final decision to impose certain discipline on the employee prior to the interview, and the purpose of the interview is to inform the employee of the discipline or to impose it.
Any conversation or discussion about the previously determined discipline which is initiated by the employee and without employer encouragement or instigation after the employee is informed of the action.
Non-Unionized Settings
Employees do not have Weingarten Rights under the current status
However, this is a flip-flop issue that has wavered depending on the composition of the Board
Remedies of violation
Section 10(c) precludes the re-instatement and back pay where a termination was for cause
If for cause termination, the employer must only post a notice of violation of Weingarten rights and not do again
Rights have been extended to Federal Employees; varies on state front
Murphy Oil
Arbitration agreements were found to violate/inhibit employee’s right to protected concerted activity
Inhibiting right to join in collective action
Court found that this is a core substantive right and therefore not one that can be waived or inhibited
Union ability to bargain away rights
It is okay to waive certain economic rights
NOT okay to waive the right to distribution of literature in the workplace
Unfair Labor Practices/Rules
