Introduction – Organization of the NLRB
Labor Law is about collective bargaining. Employees are represented by an agent who bargains for them. The statutory authority for this relationship between employers, employees, and unions is the National Labor Relations Act.
The National Labor Relations Board (an adjudicatory body) – There is a five member board all appointed by the President and approved by the Senate for a terms of five years. Rules on complaints after initial hearing by the ALJ, and is subject to appellate judicial review.
The general counsel’s office handles election cases and litigates unfair labor practice cases. Issues and prosecutes complaints.
The majority of the work is done by regional offices across the country, each headed by regional directors, which has two primary purposes:
Conducts elections to see if employees want to be represented by a union
Investigates claims of unfair labor practices (ULPs). Regional director makes decision as to whether to file a formal complaint.
After issuing a complaint go in front of an ALJ, who is trier of fact. ALJ decision goes in front of the Board. The decisions issued by the Board itself have precedent throughout the country. If employer disagrees with the Board can appeal it to the circuit with jurisdiction. Sometimes creating situations where there is split law until the issue gets to the Supreme Court.
Basis of the National Labor Relations Act
Who the Act covers:
Employees are covered but not all employees.
Has to be an employer which falls under the act, the people at issue must be employees, and the union must be a labor organization to have status under the act.
The act covers employers in the private sector, but does NOT cover public sector employees.
In order to be covered under the act, the employer must be engaged in interstate commerce.
The board chooses to assert its jurisdictional standards if the type of employer meets certain criteria.
Jurisdiction by the Board
Discretionary standards for determining if the employer is engaged in interstate commerce:
Non-retail (manufacturers), the board said it will exercise jurisdiction over employers who ship $$ amount of goods over state lines
Indirect — they ship 50,000 to an entity in state which in turn meets any of the boards jurisdictional standards.
Direct — manufacturing entity which ships 50,000 worth of goods to Indiana (it is representative of their business, they would be under the jurisdiction of the board, can split up the 50,000 as well to different states, as long as get 50,000)
Indirect — employer purchases goods from a supplier in the state. Have to be able to show that the goods came to the in state supplier from directly out of state. Can only be one
Religious institutions may or may not be covered. Question is whether mission is primarily religious. Seminaries not under jurisdiction, but parochial school may or may not.
Exception: Hospitals run by religious institutions generally are covered by the act.
The term employee is given a broad definition. May or may not include people employed by parents or spouse. In corporate setting look to see whether the parent or spouse has 50% or more control. In a larger corporation may be included unless has special privileges and treatment may be excluded by community of interests
· NYU case, student assistants are not employees,
· Interns and residents are employees in hospitals, question of whether more education or working in determining if students or employees..
· Retirees are not employees.
Are Not employees
Most important — Look to degree of control and manner and means by which the work is done
Is it distinct occupation or business
What kind of skill is it
How are they paid
Are taxes taken out
Who determines when they will work