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Labor Law
Villanova University School of Law
Cannon, John J.



FALL 2014


1(A). A Brief Overview of NLRB Structure and Procedure

1(A)(i). The Board and the General Counsel

I. NLRB – 5 Washington members (typically 3/2 political parties – 1 chair).

a. Regions – head of region is Regional Director (not a political appointment – hired job) – works for Board and Regional Counsel.

II. General Counsel – separate from Board – GC issues complaints and NLRB deals with them.

1(A)(ii). Unfair Labor Practice and Representation Proceedings – given no private right of action, NLRB works primarily in two areas:

I. §8 – Unfair Labor Practices (ULP, “complaint” proceedings) – procedure: 1)appeal to Regional Director by employees (can decide to issue complaint); 2)litigation in Regional office (Regional Counsel represents gov.); 3)ALJ (employee of Board but paid by OMB) makes finding of fact and law based on Board law; 4)passes to NLRB which may adopt ALJ’s reasoning or take account of the exceptions (General Counsel represents gov.); 5)NLRB order is not self-enforcing – needs to be enforced by Court of Appeals (§10(e)); 6)party may contest Board ruling with the circuit where the ULP occurred, the DC Circuit, or any circuit where the party resides or does business (NLRA §10(f)) – possibility of circuit shopping.

a. Preliminary Injunctive Relief – §10(l) – for §§8(b)(4)(A-C),(b)(7),(e) – so called mandatory injunction – regional director must go to district court if he has “reasonable cause” to believe in violation (can proceed without NLRB OK) – §10(j) for all other ULPs, requires NLRB authorization to obtain temporary relief of restraining order.

b. Remedies – §10(c) – allows taking of “affirmative action” to remedy.

II. §9 – Representation Proceeding (“nonadversary” – parties only “advise” Regional Director who advises Board and ex parte communications between parties is allowed) – requires filing a petition.

a. Petitions: most common type is where union seeks representation authority through election (what Brown is about) – many issues can be brought up (§9(b)): 1)appropriate bargaining unit; 2)who is a part of the unit and gets to vote (look at “community of interests;” 3)who is excluded from the unit; 4)are there people ineligible to vote under the statute; 5)where/when is election held?

i. Other petitions: 1)decertification by employer (“individual…acting in their behalf”) or employees (§9(c)(1)(A(ii)); 2)employer claim that more than one labor org. wants to be rep. (§9(c)(1)(B)).

b. Procedure: 1)commenced at Regional level; 2)Regional Board grants review only where there is a substantial question of law or policy (decision in such a case is not real a violation of NLRA and amounts to more of a warning); 3)given “nonadversary” nature, can’t appeal decision, need to convert it into a ULP proceeding – §9(d) says that record in representation proceeding becomes record in ULP proceeding (therefore, need to raise all relevant issues in rep. proceeding – §10(f) appeal to Court of Appeals).

1(A)(iii). Rulemaking Versus Adjudication – two procedures for making policy:

I. Adjudication – case-by-case decision making as done by courts (either by ALJs or the Board if appealed to them).

II. §6 – Rulemaking – Board given power to make and amend rules in carrying out the Act (used very rarely) – under APA, NLRB must first issue notice or proposed rulemaking and provide opportunity for public comment.

a. Bell Aerospace Co. – USSC upheld the idea that the Board can use either form of policymaking whenever it chose.

b. Pros of rulemaking: 1)forces dialogue between agency and public; 2)keeps things consistent by wiping out old law; 3)allows the public to participate in the process; 4)limits power of General Counsel.

1(B). Scope of Review of NLRB Determinations – Standard of review depends on nature of the issue in dispute.

1(B)(i). “Substantial Evidence” Standard – §10(e) – questions of fact, if supported by substantial evidence on the record as a whole, will be conclusive – provides significant deference to agency findings of fact – applies to two different kinds of Board determinations: 1)Pure factual findings – adjudicative facts – questions regarding conduct of specific party involved in the case (who did what, where, when…); 2)Mixed questions of fact and law – see below (ex. whether someone is a “student” depends on legal definition of “employee” as applied to what they do).

1(B)(ii). Review of Questions of “Law” and “Policy” – “discretionary judgments” – apply decision in Chevron v. NRDC – court confronts two questions: 1)Step 1 – has Congress directly spoken on the issue in question? Textual analysis; 2)Step 2 – if Congress’s intent is not explicit, court sees whether agency’s answer is based on permissible construction of the statute (court does not substitute its own judgment).

I. Under Step 2: 1)agency decision need only be “reasonable” rather than the only decision that could have been reached; 2)defer to agency because: a)Congress left the gap in the law for a reason (to let the agency fill it); b)agency has specialized knowledge on the issue; c)policy choices better made by agencies which are directly accountable to people through President.

II. Mixed Question (same as above) – two step analysis: 1)is agency using proper test/proper legal standard; 2)if it is, is it applying this standard to a proper set of facts?

III. Questions of Policy – zone of reversible policy making discretion (a certain area within which the agency can move around and change their minds about an issue – ex. seatbelt regulations) – once court has determined what margin the agency has for discretions, agency is allowed to make policy decisions within this area.

1(C). Jurisdiction

1(C)(i). The Commerce Requirement and Other Limitations on NLRB Jurisdiction – §§10(a), 9(c)(1), 1 – NLRB’s jurisdiction extends to cases “affecting commerce” as defined in §2(7) – Board self-limited itself in 1958, saying that commerce only applied where: 1)retail concerns have at least $500,000 annual business; 2)nonretail companies (ex. manufacturing) have at least a $50,000 annual outflow or inflow, direct or indirect.

I. Religiously-Operated Activities – NLRB v. Catholic Bishop of Chicago – prevented the Board from dealing with any religiously-operated activity that involves employees (interference with 1st Amendment).

II. Foreign Employee and Company Jurisdiction – no jurisdiction over American citizens who are permanently employed outside of US by American companies although employees in temporary assignment abroad are still covered – jurisdiction over foreign companies doing business in US.

1(C)(ii). Statutory Exclusions – §2(3) definition of “employee” – Taft-Hartley adds exclusions for:

I. Independent Contractors (§2(3)) – Congress found distinction between “employees” who do a job for a wage, and “independent contractors.”

a. Tests for “Independent Contractor” Status: 1)right to control (from Restatement of Agency) – does employee have a right to control the manner and means by which the job is done?; 2)economic realities test (Hearst makes it the definitive test used today because of problems with “right to control” test) – looks at underlying economic realities of relationship – treat them as independent contractors only if they are truly independent entrepreneurs.

b. United Insurance Co. – insurance agents, despite “control” over strategies, were to be considered “employees” under §2(3) because: 1)they didn’t operate their own businesses; 2)were trained by company; 3)did business in the company’s name; 4)receive company benefits; 5)permanent working arrangement with company.

c. Roadway Package System, Inc. – drivers for company’s small package pick-up and delivery system are employees as defined by §2(3) – significant factor was that many of Roadway’s policies hinder the driver’s from using their trucks during off hours and thus from independently making money – had major specifications for their trucks and therefore after a driver quits, he has pretty much only the option of reselling it to another Roadway driver.

i. Contrast with Dial-A-Mattress Operating Corp. where the court found that drivers were independent contractors because ther

mployees – even though they only worked 15% of the time, this just pointed to the idea that they were part-time rather than full-time employees – also pointed out that teaching was not a prerequisite to getting their degree (in many departments).

b. Brown University – overturn NYU decision on grounds that being a TA was inexorably linked to degree requirements and the role of employee could not be distinguished from the role of a student in the TA position – job was not economical, but rather educational in nature.


2(A). The Concepts of Discrimination and of Interference, Restraint, or Coercion – two different kinds of violations:

2(A)(i). Violations Based on Employer (or Union) Motivation – usually revolves around §8(a)(3) for employers and §8(b)(2) for unions – similar to Title VII except that discrimination is tied to union activity.

I. §8(a)(3) violation for employer when: 1)discrimination (towards §7 activity); 2)in regards to “hire or tenure of employment” or “terms or conditions of employment;” 3)that “encourages or discourages” membership in a labor organization.

II. §8(b)(2) violation for union requires: 1)causing or attempting to cause employer to discriminate against employee under §8(a)(3); or 2)discriminating against an employee dropped from the labor organization for reasons other than failure to pay dues.

III. Remedies – §10(c) deals with remedies for §8 violations – typically: 1)cease and desist order; 2)affirmative steps to effectuate policies of the Act: a)reinstatement, b)back pay.

IV. Edward G. Budd Manufacturing Co. v. NLRB – petitioner was great at supporting internal labor organization but eventually fired one of organization’s representatives, Weigand, when he tried to join the CIO, an external labor organization not affiliated with the plant – petitioner claimed that he was let go because of accumulated offenses – court upholds NLRB ruling (§8(a)(3) violation) because he got repeated raises despite offenses because he was a representative and then was suddenly fired when he happened to join the CIO (makes no sense and is clearly the result of discrimination based on union activity) – employer can retain employee for any reason, and the NLRA would not be concerned, but employer cannot fire an employee for union activity – court also finds §8(a)(2) violation.

a. Dual Motives – clearly this was a case of duel motives for dismissal and it isn’t always clear under what motives an employer is acting.

V. NLRB v. Transportation Management Corp. – employer can avoid violating the statute if he can show that discharge was imminent even had employee not been involved with the Union (§10(c)) – is burden to prove this placed on employer? USSC determines that §10(c) does not forbid placing burden on employer to prove that he would have discharged the employee for legitimate reasons absent the improper motivation (union activity) – NLRB’s interpretation of the NLRA is reasonable and permissible (Chevron step 2) – here, employer did not meet burden of proof and was deemed guilty of §8(a)(3) (anti-union animus played a role in the decision).

a. Interpretation of §8(a)(3) – as far as the NLRB is concerned, §8(a)(3) is violated as long as there is an illegitimate discriminatory motive, regardless of the possibility that something else played a role.