Select Page

Labor Law
Wayne State University Law School
Canfield, Joseph

INTRODUCTORY MATERIALS                               
The NLRB Organization
ü Jurisdiction – The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice affecting commerce.
ü Discretionary Standards – In its discretion it limits its exercise of powers to cases involving enterprises whose effect on commerce is substantial. These discretionary standards are:
Non-retail standard (manufacturers)
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 out of state -OR
Indirect — EER purchases goods from a supplier in the state who got them from directly out of state. Can only be one stop.
Direct — buy goods valued at 50,000 which come directly from out of state.
ü Cannot combine inflow and outflow to meet the standards of jurisdiction!
ü Can combine indirect and direct of one category to meet the standards.
Retail standard
Must do 500,000 of gross business in a year and must have some goods crossing state lines. As little as 2500 crossing is enough, again can be inflow or outflow, direct or indirect.
ü industry specific standards for hospitals –
Jurisdiction for Us
Employee says U violating, look to the EER for whether there is jurisdiction.
When cases for Us as EERs, then look to the dues money crossing state lines.
Exempt EERs
The act excludes governmental subdivisions, Railroads, airlines, horse racetracks, (dog racetracks are in), EERs of domestic servants, agricultural ees, some religious institutions depending on whether mission is primarily religious. Seminaries not under jurisdiction, but hospitals run by religious institutions generally are covered by the act.
Excluded Classifications
ü Confidential Ees – are not covered by the act and they assist and act in a confidential capacity to persons who formulate and effectuate management labor relations policies.
ü Guards – Any person employed to enforce rules, and protect people and property on the premises. They can be represented for the purposes of a U but, can’t be in a unit with non-guards. 
ü Managerial Ees – have a significant role in formulating and implementing company policy and are not covered by the act.
ü Professional Ees – Any employee engaged in intellectual work. They can be represented by a U. Cannot be in the same unit as non professionals unless a majority of the professionals say they want to be in the same unit.
ü SALT – A person who the U sends in to work for the EER with the purpose of organizing the EER’s ees. They are ees and cannot be discriminated against.
ü Supervisor – any individual with authority to hire, fire, promote, assign, etc so long as these activities are done with the use of independent judgment, and not in a routine, clerical nature.
REPRESENTATION ISSUES                                    
Types of NLRB conducted elections – first 4 all seek board conducted elections.
RC petition – representation petition, usually filed by a U, need 30% showing of interest usually via auth cards. Need 50% + 1 of voters to win election.
RD petition – is a decertification petition generally filed by an employee in the bargaining unit and generally requires a 30% showing of interest. Filed normally by ees that want U out, and need 50% plus 1 to win. RDs cannot be filed by supervisors or EERs.
RM petition – EER can file w/ labor board if they have a good faith that the incumbent U no longer represents a majority. EER needs to provide objective considerations (via letter affidavit, etc.) rather than a showing o

onths, running from the time of the last election, applies only to valid election. After the election year bar expires if there is no contract in place, EER must still bargain with the U but the presumption of majority status becomes refutable. While its refutable if the parties enter into a CBA then it turns back into irrefutable for up to three years.
ü Certification year bar — dates from the day the U is certified as the bargaining agent for the ees in the unit. Runs for one year. During that period the U enjoys an irrefutable presumption of majority status even if ees don’t want the U anymore. This is true even if the ees strike and they are permanently replaced.Exceptions: 1. U becomes defunct, 2. if there is a schism, 3. if the size or composition of the unit changes radically. (as long as when the U certified, as long as 30% of ees, and 50% of classifications the bar remains in place)
ü Recognition bar- If EER voluntarily recognizes the U. If the recognition is in fact valid, there is a bar for another U coming in or the EER decertifying. Lasts for a reasonable period of time. Depends on if there has been a long enough time for parties to negotiate in good faith for CBA. NEW RULE – if EER voluntarily recognizes, there is no recognition bar until someone notifies the board. If board is notified the regional office sends out notifications that U has been granted and that if anyone wants to challenge the recognition there is 45 days to contest.