LABOR LAW
SCHROEDER
FALL 2012
I. Introduction
a. National Labor Relations Act (NLRA)
i. NLRA only covers private sector (not public sector)
ii. Also known as Wagner Act
iii. Before NLRA, it was everybody for him or herself
iv. Regulates employee rights
1. Organize
2. Form unions
3. Engage in concerted activities
v. Then created unfair labor practices (Section 8)
1. That caused creation of NLRB
2. Still only for employees
vi. Highly preemptive
b. Taft-Hartley Act (LMRA) (1947)
i. Enacted over Truman’s veto
ii. Created union unfair labor practices (not just employees)
iii. Added language to sec. 7 protecting the right to refrain from engaging in those activities
1. Not organize, form unions, etc.
c. Landrum-Griffin Act (LMRDA)
i. Lots of financial and other reporting regulations
ii. Created the union members bill of rights
1. Created some form of due process for members within a union
iii. Closed loopholes in sec. 8(b)(4)
d. 1974
i. Added private, non-profit health care institutions
e. NLRB
i. Makes its rules almost solely through adjudication
ii. SCOTUS says that is OK
iii. But procedural rules are done through the rulemaking process, generally (only formal rulemaking 3 times, though)
iv. Board can expand its jurisdiction, but it can’t limit it to LMRA limits
v. Relation to commerce clause
1. Under statute, any relation to commerce is enough to spur jurisdiction of agency
2. However, NLRB usually only accepts cases with strong ties to interstate commerce
3. Put in the table of jurisdictional guidelines here
vi. Labor board has to wait for someone to file a complaint or petition
1. Cannot go out and find the violations
vii. Adjudicative process
1. Party files a complaint or petition
a. Collects commerce questionnaire from employer
i. If employer doesn’t fill out questionnaire, the board will assume jurisdiction and subpoena that information
viii. Exclusions from coverage (jurisdiction)
1. §2(2) Government entities, railroads and airlines have their own law
2. §2(3) Exceptions to “employee”
a. Independent contractors
i. Use the right to control test (agency theory) to determine whether ind. contractor or employee
b. Supervisors
i. Definition: “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 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”
ii. Very broad definition of supervisor
iii. Supervisors can join unions (but not protected by the act generally)
1. Unless they are harmed while protecting employee rights
c. Agricultural laborers
i. Forklift operators, machine workers are not ag. workers (too far removed from ag. work)
d. Domestic service
3. Managerial employees
a. Managers are not statutory employees
b. Need to divide between management and laborers
4. Confidential employees
a. Assist, confidentially, managers, owners, supervisors who “formulate and effectuate management labor relations policies”
5. Undocumented workers are entitled to employee status under the statute
a. But good luck getting enforcement if you’re undocumented
b. Hoffman Plastic Compounds
f. *** §7 rights belong only to employees
II. Right of Self-Organization
a. Employer Interference, Restraint, or Coercion
i. RIGHTS OF EMPLOYEES
1. Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]
ii. 8(a)(1)
1. It shall be an unfair labor practice for an employer–
a. (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;
2. General violation provision
3. All others are derivatives of 8(a)(1)
a. So, if violate 8(a)(2), etc., also violate 8(a)(1)
iii. Limiting Organizational Activities on Employer’s Premises
1. Non-employee organizers
a. Lechmere, Inc. v. NLRB, 38
i. Nonemployees may be covered by § 7 b/c ees have the right to know their legal rights under § 7
1. Can only get knowledge from outsiders
ii. S. Ct.: generally, nonees can be banned from property, as long as “reasonable alternatives” to contact ees
1. Court did not endorse “big city” rule – where impossible to find individual ees
2. Also did not delineate between publicly accessible parking lots and private ones
b. Tagging license plates and getting contact info from DMV is illegal under federal law
c. Best strategy may be getting outsiders hired at the business (ppl are called “salts”)
i. Then they are an ee and have § 7 rights and can’t be fired for union activities
2. Employee organizers
a. Es only have the right to discipline, make sure ees are working à business does not shut down, slow
b. No Solicitation rules
i. Applies during “working time”
1. All parties must be off working time
2. Ees need to be working when they are supposed to
3. Can’t be working hours – times with actual production
4. Does not include lunch, smoke breaks
ii. Occurs when 2 or more ppl are talking to each other about union activity
iii. Includes solicitation of signatures on “authorization cards”
iv. Includes selling areas at grocery/department stores
v. Also, includes immediate patient care areas – no to waiting areas but gift shops are OK
c. No Distribution rules
i. E can ban distribution during working time and in working areas
ii. Main concern is littering in the work place
d. Unfair labor practices
i. OK for E to promulgate no solicitation and no distribution rules if there is no “anti-union animus”
1. 8(a)(1) to apply no solicitation rules to only union activities – sorry Girl Scouts
ii. Not OK to all of a sudden enforce rules already promulgated that were never enforced before
3. Off-duty employees
a. E can limit access to premises only if
i. 1) Limitation is only to interior of plant/office
ii. 2) Everybody knows about
iii. 3) Applies equally to everybody
b. Cannot deny access to parking lots unless for legitimate business purposes
4. Buttons, insignia, t-shirts
a. Es can’t limit ee’s use of buttons or slogans to show their support for the union
b. Exceptions
i. Safety – could get caught in machinery
5. Waiver of § 7 rights by unions
a. Unions can’t agree to broader no solicitation rule than allowed by NLRA
b. But unions are encouraged to waive right to strike, and often do
iv. Interrogation
1. Blue Flash Express, Inc., 68
a. There is no threat, coercion or restraint of § 7 rights when simple interrogation of union support – no 8(a)(1)
i. Now called “polling”
ii. Lying by ees does not indicate coercion or restraint
b. There are other ULP safeguards
c. Viewed under the totality of circumstances whether there is a “legitimate purpose”
2. Current rule to polling
a. 1) Legitimate purposes
b. 2) Polling told to all ees
c. 3) E makes assurances against retaliation
d. 4) No other ULPs are going on
e. 5) Questioning must be done by secret ballot
i. No
rs without loss of time or pay;
ii. 2(5): The term “labor organization” means
1. any organization of any kind, or any agency or employee representation committee or plan,
2. in which employees participate
3. and which exists for the purpose, in whole or in part, of dealing with employers concerning
4. grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
iii. What evil was Congress addressing
1. Allow co.s to co-sponsor aggressive unions
2. To give union a voice and protect it
3. Depends on the premise of adversarial conflict between ees and Es (need to deal at arm’s length)
iv. Good faith is not a defense to 8(a)(2) (also called scienter)
1. Invalidates collective bargaining agreement if not a true majority
2. ILGWU v. NLRB (Bernhard-Altmann Corp.), 84
v. Examples of 8(a)(2) violations
1. E recognizes a union that does not have a true majority status
2. Choosing another union (preference) over a majority union
3. Getting supervisors involved in union activities
c. Employer Discrimination
i. 8(a)(3): It shall be an unfair labor practice for an employer–by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization
1. Miscellaneous Practices
a. Stewards, or members of the shop committee, get super seniority and are the last to be fired and first to get hired
i. B/c they know the most about the CBA and need to be there all the time to make sure there are no shenanigans
ii. No super seniority for any other reasons
ii. Union Security Agreements
1. Where E and union agree that ees in union need to keep status with union in order to retain employment
2. Types
a. Closed Shop
i. Have to be member of union to get hired
ii. Led to discrimination and nepotism
iii. Taft-Hartley banned these types of agreements
b. Union Shop
i. Can require ees to join the union within 30 days of getting hired
ii. Made illegal under Taft-Hartley
c. Agency Shop
i. Don’t have to join the union, but still have to pay typical union dues
ii. Called financial core members or fair share members
d. Maintenance of membership
i. Not used – required to maintain membership
e. Dues check-off
i. Deduct union fees from wages
3. Unions cannot get ee fired for purposes of retaliating against that ee for not joining the union
a. Cannot discriminate against ee unless ee doesn’t pay periodic dues or initiation fees
b. Cannot discriminate for non-membership
c. Cannot be b/c of employment preconditions, oath of membership
4. Taft-Hartley addressed two evils
a. Closed shop union securities
b. Permitted the union and E to prevent the “free rider” issue
i. People not paying their fair share but still getting the benefit of the union
5. When union can get ees fired
a. If ee doesn’t pay the dues
b. This is a condition of employment
c. A 2010 NLRB decision requires some form of due process to inform debtor ees of their duty to pay w/in certain time period
