Labor Law
Gely
Fall 2011
What is labor law about?
· Labor Law is about the regulation of the labor relations process.
o What is the Labor Law relations process?
§ Actors
· Employees
· Employers
· Unions
o A union is any org that represents a group of employees with regard to compensation, hours, and other conditions of work.
§ Environmental Factors
· Tech, globalization, product market, labor market, political forces, legal forces
§ Outcomes
· CBA
A few questions about unions
· What do unions do?
· why do we need unions/
· Are unions good or bad?
· Trends in unionization rates in the US
Unionization Trends in the US
· dramatic decline from high pt. of 1960 around 36% to less than 10% at the turn of the century. Today we are about the same percentage as it was at the turn of the 20th century.
o reasons are varied
§ New fed. employment legislation provided protections which union once did
§ State “right to work” laws
§ globalization providing competition
· employers move jobs to cheaper foreign nations
· cheaper foreign goods over competition
§ decline of US industrial sector
§ Rise of technology
§ Demographics—switch from male, white dominated workforce
· Unions were not as welcoming to new groups
Why study labor law?
· Although only 10 percent of the labor force, that is still about 15 million peoples
· Unions important in major cities (StL has 15-17%)
· Industries in which unions concentrate are still significant—even if on decline
· Implications for other areas of law—admin. law
· The issues are not going away, even if unions do.
History of Labor Movement
· Between 1850 to about 1900, whatever labor union activity there was, occurred outside and without the protection, of the legal system.
· In the early 1900s, the federal Congress got involved in the regulation of labor relations.
· Congress saw a need to provide a frame work for labor negotiations to manage and decrease work stoppages and violence which hurt economy.
· National Labor Relations Act (NLRB)—enacted by Congress in 1935
o Two goals
§ Promoting industrial peace
§ Reducing the inequality of bargaining power between employees and employers.
o Sec. 7—“Employees shall have the right to self-organization, to bargain collectively… and to engage in other concerted activities…’
§ This right was given some teeth by means of the enumeration of various behaviors that would violate this right. These behaviors are referred too as Unfair Labor Practices (ULP)
o NLRA as amended in 1947
§ Congress added language to Sec. 7 stating that “employees shall also have the right to refrain from” the various activities enumerated in Sec. 7.
§ Congress listed a series of union ULPs
· Difficult to reconcile the intent of the pro-business amendments and original statute i.e. to protect workers limited rights
National Labor Relations Board (NLRB)
1. NLRB composed of 5 members
2. President appoints members with the consent of the Senate
3. General consensus until the 1980s when it became increasingly political
4. Gen. counsel is chief enforcer and decides when to issue complaints on chargers filed, final decision to bring suit.
5. The Board’s Pro. and Quasi-Judicial function
1. Prosecute and rule on cases
2. The Board has the authority to decide cases through adjudication or to decide matters by means of rulemaking.
§ Board has been reluctant to make rules
6. Judicial review of Board decisions
1. The decisions of the Board can be challenged at the court of appeals level. DC circuit or the circuit court where the board is.
2. Sec. 10e provides that “finding of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive
3. Very deferential standard
4. SC and appeals court have shown different level of deference over the years.
§ Sometimes due to politics between Court and admin.
CORE ELEMENTS OF COLLECTIVE REPRESENTATION
· NLRA Sec. 7—RIGHTS OF EMPLOYEES
o (1) “Employees shall have the right to self-organization, to form, join, or assist (2) labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other (3) concerted activities (4) for the purpose of collective bargaining or other (5) mutual aid or protection, and shall also have the right to refrain from any or all of such activities…”
§ Note that Sec. 7 coverage isn’t limited to union members.
§ 5 main elements of section:
a. Employees
b. Labor organizations
c. Concerted activity
d. For the purpose of collective bargaining
e. Mutual aid or protection
1) Who is an Employee under the act?
1. Definition of Employee: Section 2(3)
a. Broad and vague definition but there are some clear exceptions i.e. supervisor, agricultural laborer, domestic servan
essional employees”—statutory language problem between sections.
o Professional employees are entitled to organize but can be their own bargaining unit, however, based on def. they may also be classified as manager.
Supervisors v. Professional Employees
NLRB v. Health Care & Retirement Corp.
· The board argued that the authority the nurses were exercising when directing less skilled employees (one of the tasks described in section 2(11)) was not exercised in “the interest of the employer” as required under the section, but in their professional interests.
· SC rejects board’s argument. Nurses’ interest in patient care same “interest of the employer”
Kentucky River
· Nursing home employed 100 nurses, 6 of whom where RN with at least 2 on duty at all times
· Usually the RN did nursing activities but also had building supervisor duties at night.
· The board argued that when directing less skilled employees (one of the tasks list in section 2(11)), the nurses did not use “independent judgment” but instead were using profession or technical judgment.
· SC rejects the board’s argument, holding that there was no basis on statutory language to make distinction.
Arguments that remain for the board after Kentucky River:
· Were the supervisory functions exercised with enough discretion instead of in a routine or clerical nature?
· Another possible argument might be to define narrowly some of the activities listed in Section 2(11) (e.g. assign, direct)
Oakwood Healthcare (2006)
· Independent Judgment—determined by the degree of discretion involved, not the type of discretion (i.e. professional, technical)
· Assign refers to the act of designating an employee to a place, time, or giving significant overall duties.
· Responsibly to direct means deciding what job will be undertaken next or who will do it, provided that the individual making the decision is accountable for the performance of the task by the other.
· Very intensive factual analysis required which creates problem
