LABOR LAW
DUFF
SPRING 2013
I. Labor and the Contemporary Workplace
a. Purpose: (EXAM KEY WORDS)
i. Equality in bargaining power
ii. Industrial peace – squelch industrial strife (prevent industrial strife)
b. Private sector concerted activity is presumptively a matter of federal law
c. Labor law is about how the law manages the conflict between ER and EE
d. Vegelahn v. Gunter: use of “persuasion and social pressure” was a lawful means to seek betting wages and hours
e. Organizing: Time is the enemy of the union
f. Railway Labor Act 1926 (includes air carriers)
i. First positive labor law at federal level
ii. Establishes system of mediation/arbitration (not couched in terms of employee rights)
1. No strikes unless a cooling off period has expired (60 days)
iii.
g. Wagner Act: first labor relations act – confers rights to workers to engage in labor
activities (ER’s are (a) and unions are (b))
i. §3 establishes NLRB
ii. §7 gives EE’s the right to form, join or assist labor organizations.
iii. §8(1) – ULP to interfere with §7 rights
iv. §8(3) – UPL to discriminate in hiring or firing because of an EE’s union membership
v. §8(5) UPL to refuse to bargain in good faith
vi. §9 (how EE’s select union)– representatives must be selected by a majority of EE’s in a “unit appropriate for such purposes” (exclusive representation)
vii. §10 – Prevention of ULP’s and enforcement procedures
h. Norris-LaGuardia
i. No injunctions for peaceful labor disputes by federal courts (FAVORITE EXAM FACT PATTER)
i. Taft Hartley
i. Added violations for unions
j. Public Sector
i. Usually no right to strike
ii. Different rationale than private sector for laws.
II. Boundaries of Collective Bargaining Representation
a. §7 rights run to EE’s only, not unions
b. §8(a)(1) – Unfair labor practices: Have 6 months to file a charge under §10(b)
c. §2(3) – EE defined: EE shall include any EE, and shall not be limited to the EE’s of a particular ER…but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individuals employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an ER subject to the Railway Labor Act…or by any other person which is not an ER as herein defined.
d. Supervisor defined in §2(11) – Any individual having authority in the interest of the ER, to hire, transfer, suspend, la off, recall, promote, discharge, assign, reward, or discipline other EEs, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment
i. Anyone of the 12 factors above is enough
1. Master Carpenter: trainer or supervisor?
ii. EXAM: Go through all 12 factors then determine if they use independent judgment (non-routine work) – Oakland Charge Nurse
iii. Test:
1. Whether EE is so closely related to or aligned with mgt as to place the EE in a position of potential conflict between his ER and his fellow EE’s
2. Whether EE formulates and effectuates his ER’s policies or has discretion independent of those policies in the performance of his duties
a. Tests are disjunctive (only have to meet one)
iv. Confidential EE’s also excluded (think of HR assistant)
1. EE’s who assist and act in a confidential capacity to persons who formulate, determine, and effectuate mgt policies in the field of labor relations.
e. Independent contractors: See 20 factor test on page 115
i. Although you may not use all factors may be used, you must state 10 factor test on exam.
f. Home Health Care Workers – usually covered under state law
g. Undocumented workers are EE’s under NLRA
i. No reinstatement or back pay applied
ii. Can fire for union activity
h. §2(2) ER defined: ER includes any person acting as an agent of an ER, directly or indirectly, but shall not include the US or any wholly owned government corporation, or any federal reserve bank, or any state or political subdivision thereof, or any person subject to the Railway Labor Act…or any labor organization (other than when acting as an ER)
i. Jurisdiction (factors chosen by NLRB) – ON EXAM SAY ER IN COMMERCE OR
tion (Weingarten) –
1. EE must request representation (not automatic)
a. ER cannot discipline EE for making request.
2. Right limited to situations where EE reasonably believes investigation will result in disciplinary action
3. ER may decide not to allow presence of union representative in disciplinary action (Weingarten) – ER has no obligation to explain refusal (can just investigate with EE if they refuse to participate w/o representation)
a. ER has no duty to bargain with rep (just a note taker)
4. If ER denies rep and compels EE to participate, and subsequently terminates the EE, then EE has reinstatement rights as this is a violation of 8(a)(1)
ii. Concerted Activity must have a nexus to terms and conditions of employment (and the workplace generally) (Eastex)
1. Workplace Nexus Test: Whatever is reasonably related to EE’s jobs or to their status or condition as EE’s in the plant may be the subject of the flyers at issue, distributed on the plant premises in such a manner as not to interfere with the work.
a. Mutual aid and benefit language broadly interpreted
2. Timekeeping Systems: Sending an email to everyone isn’t enough, you must get at least one response agreeing with your position.
c. Loss of Protection:
i. Indefensibility/disloyalty may deprive EE’s of NLRA protection (Jefferson Standard)
1. Indefensible includes disparaging ER
d. Union only needs 30% support to run election, but won’t do so with less than 70%
e. Domination:
i. §8(a)(2) Unfair Labor Practices – It shall be unfair labor practice for an ER…to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided….an ER shall not be prohibited from permitting EE’s to confer with him during working hours without loss of time or pay.