Labor Law Outline, FALL 2006
I. Introduction to Labor Law
A) The NLRB Organization
NLRB: (Adjudicative body–generally on a case by case basis w/out regid rules) Composed of 5 members. They are appointed by the President (w/Senate aproval) for a term of five years. Only the Prez may remove a Board member from office. Removal is permitted only for “malfeasence in office or neglect of duty” and you have to have a formal hearing. Panel may sit in full or w/3.
General Counsel: Investigates and prosecutes ULP cases through its regional offices and if meritious presecute the cases before an ALJ. Who conducts elections?
(i) Three departments
Þ Advice: if regions get a novel issue, they can submit to advice to get an opinion as to what they can or should do
Þ Appeals: if the investigator doesn’t find the claim to be meritorious, the party can appeal to this department (but if GC decides not meritorious, end of the line)
Þ Enforcement: once they get a complaint and a ruling, if a party doesn’t comply, the other party can go to court of appeals and get them to comply, or the enforcement division can go to the court of appeals and force compliance
Regional Directors: Under the Landrum-Griffin Act they can hear cases involving union rep and deuthorization elections when delegated by the board. The Board has limited review here.
Functions of the NLRA
1. Disposition of e’ee rep cases
2. Disposition of ULP
3. Gives e’ees right to CB
Take grievance to the board, then board will give to investigrator and the invesitagtor would take it to the person then RD decides if there’s a violation. Then its either dismissed or filed. If its dismissed the E’ees can appeal. IF its filed then it goes infront of the ALJ, then GC has the burden of proving the violation, Parties can either accept or rject what ALJ does. It they reject it goes to the Board, the boards decisions are final. IF they don’t agree they can go to Ct of appeals
B) Jurisdiction (coverage of the NLRA)
1) Jurisdictional Standards—employer’s business activity has to fall within the meaning of “commerce” or “affecting commerce”
(i) Gross revenue > 500K in a representative year
(ii) Some goods have to cross state lines (inflow OR outflow)
(i) $50K of goods crossing state lines (have to be consumed in business, not capital)
Þ Inflow (direct or indirect)
1. Direct: Company MI buys goods from Company OH
2. Indirect: Company MI buys goods from Company MI2 who buys goods from Company OH
3. NOTE: can ADD direct and indirect inflow to make the 50K
1. Direct: Company MI sells goods to Company OH
2. Indirect: Company MI sells goods to Company MI2 who is engaged in interstate commerce and meets jurisdictional standards.
Þ NOTE: can NOT ADD inflow and outflow
C) EMPLOYER AFFECTING COMMERCE
1) Categorical exclusions:
(a) Government—fed/state offices, labor unions and their officers and agents (other than when acting as employers)
(c) Employers of domestic servants
(d) Religious institutions
(e) Agricultural employers
(f) Horse tracks
(h) Political institutions
1) Categorical exclusions:
(a) Supervisory employees
(i) §211 lists factors that make an employee a supervisor, only need one, and don’t need to actually exercise supervisory power, just have the power (hiring, firing, directing, evaluting, transferring, and discplining of other e’ees.)
(ii) Kentucky River: SC held that RN’s were supervisors because they directed others in providing care. Board had found them NOT to be supervisors, didn’t have the employers interest in mind when exercising orders. (Under KR, even journeymen would be supervisors)
(b) Managerial Employees
(i) Effectuates managerial policies
(ii) Yeshiva case: faculty members were managerial employees because they formulated and effectuated decisions that were essential to the running of school. Decisions on class sizes, admittance, grading curves. So while they were employees, since they made these types of decisions, they were managerial.
(c) Confidential Employees
(i) Employees that are in the room when labor relations are being discussed
(d) Agricultural employees
(e) Domestic workers NOT directly employed by owner of the house
(f) Employees employed by parent or spouse
(h) Interns and residents in teaching hospital
ajority, there will be a new election between the two options that got the most votes (could be Union A and No Union)
C) The Election Process – certification election
1) File a petition (can be employees, employer or Union), served on the employer
2) Board decides if there is the requisite “showing of interest”—need showing of 30% of Unit is in support of the Union (authorization cards)
3) Board calls employer and asks if there are any issues (mandatory):
(a) Employer has to be affecting commerce
(b) Union has to be a labor organization
(c) There has to be an appropriate Unit
(d) There must be a QCR: question concerning representation in order to have an election
(e) NOTE: eligibility of employees will be an issue in some cases, but not mandatory before an election may be held
(i) Won’t go to election if more than 10% of the unit is of questionable eligibility
(f) NOTE: also have to see if there is a BAR TO ELECTION. Either party can raise it, OR the Board can raise on its own, BUT if it is not raised, the TOO BAD. This is an AD that they have to RAISE AND PROVE.
4) If Employer calls into question one of the 4 mandatory issues, then the Board will hear the issue and decide if the Unit is appropriate, etc.
(a) Either order election or dismiss petition.
5) If the 4 things are in place, then the parties can set a date for the election. Election agreement: date, time, unit and payroll period.
6) Board requires that the Employer give the Union an Excelsior List that includes:
(a) Name and addresses of all employees in the unit
(b) It has to be accurate
(c) In some elections there might be more than one union on the ballot—both get the list
(d) Employees/Union must have the list for at least 7 days before the election