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Labor Law
Wayne State University Law School
Canfield, Joseph

FALL 2013
§  Labor Law is about collective bargaining
§  Employees represented by an agent who bargains for them
§  Statutory authority for the relationship between employers, employees, and unions is the National Labor Relations Act
§  Canfield: act is revolutionary because it was illegal for workers to collude against employer
National Labor Relations Act
§  Basic Provisions
o    §7 – rights of employees – guarantees
§  Freedom to form, join, or assist labor organizations
§  Freedom to bargain collectively with the employer
§  Right to engage in concerted activity for the purpose of collective bargaining or mutual aid and protection
o    §8 – Duty of employer to bargain
§  Imposes an affirmative duty on employer to bargain in good faith
§  Employer obligated to bargain with union designated as the exclusive representative-bargaining unit designated by the NLRB 
§  Bargaining rep is selected by a majority of employees in the unit.
§  Who the Act Covers?
o    Not all employees
o    Must be employer that falls under Act, must be employees of employer, union must be labor organization to have status under the Act
o    Employers in private sector and postal workers
§  NOT public sector employees
o    Employer must be engaged in interstate commerce
§  Board chooses to assert jurisdictional standards if employer meets certain criteria
§  Who is NOT covered?
o    Public employers
o    Workers who are not employees
o    Supervisors
o    Independent Contractors
o    Farmers
o    Agricultural employees
o    Airlines, Railroad, Common Carriers
§  Michigan Employment Relations Commission deals with public employers who do not meet board’s jurisdictional requirements
§  National Labor Relations Board (NLRB)
o    Adjudicatory body set up to administer the Act
o    Empowered to “prevent any person from engaging in any unfair labor practice (listed in §8) affecting commerce” §10(a)
o    Five Member board
§  Appointed by President
§  Approved by Senate
§  5 year terms
§  Only president may remove a board member
·         Permitted for malfeasance in office or neglect of duty
§  Rules on complaints after initial hearing by ALJ
·         subject to appellate judicial review
§  Administrative Law Judge
o    Located in DC, San Francisco, NY and Atlanta
o    Travel around country holding hearings
o    Selected by the board
o    Can only be removed for cause after a Civil Service Commission hearing
§  General Counsel’s Office
o    Investigates and prosecutes unfair labor practice (ULP) cases through regional offices
o    Handles election cases
o    Issues and prosecutes complaints
o    Majority of work done by regional offices across country, headed by regional director with 2 primary purposes
§  1. Conduct election to see if employees want to be represented by union
§  2. Investigates claims of ULPs. Regional directors make decisions whether to file a formal complaint
o    Procedure
§  Formal complaint filed
§  Complaint hearing held in front of ALJ (trier of fact)
§  ALJ decision goes to Board
§  Board decisions have precedent throughout country (like common law)
§  Employer can appeal Board decision to circuit with jurisdiction
§  Two Major NLRB Functions
o    Election side: Union is the bargaining agent of employees. NLRB conducts elections to see if employees want to be represented by a union. (Preferred way: R cases)
§  Disposition of Employees Representation Cases (R-Cases) Regional offices
·         1. Petition is filed with the Regional Office
·         2. Office decides whether a question of representation exists
·         3. Office decided appropriate unit questions, as necessary
·         4. Conducts and confirms elections
·         5. Board has final authority in R case and its decisions are subject to judicial review only by way of indirect procedure
o    Can’t take a direct appeal to Court – Board said that unit is appropriate
o    To test: Employer must refuse to bargain, raise defense that unit was not appropriate, can violate 8(b)(7). Picket within a year to get to Court
o    Disposition of Unfair Labor Practice cases (C cases)
§  1. Charge must be filed within 6 months of occurrence (SoL). Filed with the General Counsel in a regional office
§  2. Regional Director investigates and decides whether to issue a complaint
·         Decision to dismiss/withdraw is subject to only limited and final review by the General Counsel
o    Until complaint is issued, a charge may be disposed of by a withdrawal, a dismissal or settlement by the parties, or an adjustment under the auspices of the regional office
§  3. Once complaint is issued, Board may seek a temporary injunction or restraining order against ULP
§  4. Hearing held in front of the ALJ. ALJ prepares a decision and if no objections, Board adopts the decision
§  5. If objections filed, Board reviews case usually with 3 member panel unless case involves important policy questions (then full board)
§  6.  Board may substitute own finding or adopt those of ALJ. If either party objects, may take case to appropriate Federal Court of Appeals. Court may set aside the Board’s decision only if it finds that decision is not supported by substantial evidence on the record or if board made errors of law
§  7. Supreme Court only intervenes when the standard appears to have been misapprehended or grossly misapplied
Jurisdiction by the Board
First question: when a case comes in, does the board have jurisdiction?
In General – factors determining whether an employee or employer covered by the NLRA
1.     Is there a labor dispute within the meaning of §2(9) of the Act
a.     Labor Dispute: any controversy concerning terms, or conditions of employment, or concerning association or representation of persons in negotiating, maintaining, changing or seeking to arrange terms of conditions of employment. Disputants need not have an ER/EE relationship
2.     Does the business activity of the employer fall within the meaning of “affecting commerce” in §2(7)
a.     Commerce: met if employer engages in trade, transportation, or communication among any states, the District of Columbia, and any territories of the U.S., or between points in the same state but through any other state, territory, etc §2(6)
b.    Affecting commerce: means burdening or obstructing commerce of the free flow of commerce. §2(7). Supreme Court has given the term the same broad reach as the Commerce Clause of the Constitution.
                                          i.    Exception: picketing a foreign vessel in US port with purpose of increasing US wages is “not activity affecting commerce” because not shown how picketing would affect interstate commerce
3.     Does the employer meet the Jurisdictional standards? (see below)
a.     Based on the yearly amount of business done by the enterprise, or
b.    Yearly amount of its sales, or
c.     Yearly purchases
                                          i.    All terms are of total dollar volume of business and are different for different kinds of enterprises
4.     Applies only to those who act as employers or (directly or indirectly) as agents of employers
Discretionary standards for determining if the employer is engaged in interstate commerce. Where interstate activities are minimal, the NLRB may decline jurisdiction. If so, state/local agencies can’t reach a decision that would undercut the policies of the NLRA.
Jurisdictional Standards – something has to cross state lines – covers both outflow and inflow
Non-retail (manufacturers), $50,000 of:
s  Outflow: Direct sales to consumers in other states (goods can come from instate warehouse as long as it came from out of state first – one stop only), or indirect sales through others.
o    Indirect – ships $50,000 to an entity in state which meets any of the board’s jurisdictional standards.
§  Person buys goods in state and company qualifies under NLRB, NLRB has jurisdiction. Must show the $50,000 worth of goods went to companies that themselves qualify under NLRB standards
·         If goods go directly to facility that meets requirements
·         If goods go to dealership owned by Chrysler that does not meet standard, still jurisdiction since owned by Chrysler that does meet standard.
o    Example:
§  Direct: MI company sells goods to OH company
§  Indirect: MI company sells goods to MI2 company who is engaged in interstate commerce and meets jurisdictional standards
o    Note: Can’t ADD inflow/outflow
s  OR
s  Inflow: direct purchases of goods from suppliers in other states or indirect purchases through others
o    Indirect – employer purchases goods from supplier in state. Must show goods came to instate supplier directly out of states. (Only one stop)
o    Example: (Direct/Indirect)
§  Direct: MI company buys goods from OH company
§  Indirect: MI company buys goods from MI2 company who buys goods from OH compa

portion of the work covered
Representation Issues p. 210-235
Employees must be represented by an appropriate unit.
Appropriateness of unit is determined/certified by the board. §8(a)(5)
s  Does not have to be the MOST appropriate unit: Only AN appropriate unit
s  Ex: Employer has 25 employees at 2 facilities. Considerations include geography, interaction, supervision, community of interest
s  Single Plant Unit is Presumptively Appropriate
First Step: Designation of the appropriate bargaining unit and selection of exclusive bargaining representative.
§  Employer has a duty to bargain only with the union that represents the majority of employees in an “appropriate” unit.
§  NLRB determines whether group is appropriate in every election
o    Regional Director has discretion to determine appropriateness
o    Not subject to judicial review
§  Except: claimed arbitrary, capricious, lacking rational basis
§  Relevant Factors:
o    Mutuality of interest
§  Most important factor: similarity of skills, work, wage and benefit differences, hourly vs. salary, hours, working conditions (breaks together? After work activities together?), Advancement from one job to another, same person make determination about salary and employment? Same supervisor?
·         The more factors that are similar – more likely that Board will find appropriate unit
o    History of collective bargaining
§  Important but not determinative – may be ignored if strong reason for designating a different unit from historical pattern
o    Desires of employees
§  May be significant if other factors are evenly balanced
o    Extent of employee organization
§  May be considered but prohibited from controlling weight
§  Limitations: §9(b) – Unit appropriate….shall be employer unit, plant unit, or subdivision thereof
o    Professional Employees may not be included in unit with nonprofessional employees unless majority of professional employees vote for inclusion in the unit §9(b)(1)
§  Leedom v. Kyne p. 230: Court struck down Board’s decertification of a unit containing 233 professional employees (§2(12)) and nine technical employees
·         Professional employees cannot be represented in the same bargaining unit as nonprofessional employees unless professional employees indicated by a majority that they want to be included in the same group as non-professionals
·         Appropriate unit of employees must be certified by the Board. Does not have to be the most appropriate unit; only AN appropriate unit
·         Held: Federal district courts have jurisdiction to strike down an NLRB representation order when it violates §9(b)(1) [may include nonprofessional employees and professional employees in the same unit with latter’s consent] o    Craft Unit: Cannot be held inappropriate solely on the basis that a different unit has been established by a prior agency decision. §9(b)(2) provides that absent a prior Board determination, the board would not decide that a craft unit was inappropriate unless “a majority of the employees in the proposed unit voted against separate representation.” [severance election] §  Board should considered following nonbinding considerations for craft severance election
·         Whether employees are craftsmen working in non-repetitive jobs
·         History of labor relations of employees in question from other plant employees
·         History of collective bargaining in the industry
·         Integration of the production processes
·         Qualification of Union seeking to carve out the new craft group – including experience