I. the NLRA and NLRB (Assignments 1 & 2)

Labor Law Outline

I. The NLRA and NLRB (Assignments 1 & 2)

A. Evolution of Labor Law

1. Generally

Labor Law = the regulatory scheme of “collective bargaining” established under the NLRA (Wagner Act of 1935 and as amended by the Taft-Hartley Act of 1947)
Relationship b/t employees and employers in the presence of a union
Motivation to join a union: strength in numbers in negotiations, protection, economics (to be treated fairly), union will negotiate on basis of seniority, not performance
Changes employment at will
Montana is unique because employment is for cause there, not at will
Administered by the NLRB instead of by the courts
Primary forum for adjudication is an administrative tribunal
Largely federal law – states cannot prescribe or affect it
Defining and central theme = unionization and collective bargaining
Once organized, the union is the single, collective voice for the employees, whether they support the union or not, and they are forbidden to bargain individually with the employer
Employer must negotiate in good faith for the terms and conditions of employment

2. Pre-NLRA

1850s – Formation of the first “national” unions, representing one craft or occupation in different localities
1869 – Noble Order of the Knights of Labor
Merged trade union and political endeavors
Only admitted the skilled and unskilled workers and farmers but excluded professionals
Chicago “Haymarket Riot” ended its popularity
1880s - American Federation of Labor
Did away with the radicalism of the Knights and focused on a narrower trade-union philosophy that lessened emphasis on social reform through politics and more on building disciplined unions, which thru collective bargaining, would be “business-like” in improving wages and working conditions
Began the political philosophy that lasted through 1920s of “voluntarism” = a commitment to the private ordering of labor relations thru collective bargaining
1890s – leading labor organization but remained a “craft” union
1890 – United Mine Workers organized the first permanent “industrial union”

3. At Common Law

Originally, union activity was held as criminal conspiracy (Philadelphia Cordwainers)
Commonwealth v. Hunt ended criminal conspiracy indictments – shifted labor cases from criminal to civil courts
Holmes Dissent in Vegelahn v. Guntner
Policy of allowing free competition justifies intentional inflicting of temporal damage, including interference with business, when it is done as an instrumentality in reaching victory in labor dispute
To exclude the relationship b/t employers and employees from this competition would be to narrow it too far – capitalism is good for the employer is business, it should be allowed and good for employees too (supply and demand in labor relations)
Conduct done by a group is not unlawful if an individual could do it by himself
Anti-trust laws – Courts used anti-trust reasoning to attack organized labor – amendment to the Clayton Act attempted to free labor from anti-trust arguments but was struck down by the SC

4. 20t h Century Legislation

Railway Labor Act
Prohibited interference, influence, or coercion by either party over the self-organization of employees
Duties imposed: to make/maintain agreements about rates of pay and working conditions, abide by the agreement until settlement procedures are exhausted (negotiation, mediation, voluntary arbitration, and conciliation) before resorting to self-help
Formed the National Railroad Adjustment Board and the National Mediation Board
Norris-LaGuardia Act (1932)
Congress took away courts’ jurisdiction over labor – exercised authority under Art III to limit jurisdiction
Taft-Hartley gave it back a little bit in context of K “no strike clauses” – courts can enforce the K violation if union strikes
Promoted unionization (in response to court’s growing hostility toward organized labor), collective bargaining, and concerted activities
Set limitations on the jurisdiction of federal courts to issue injunctions in labor disputes
National Industrial Recovery Act (1933)
Struck down as violating the delegation doctrine and separation of powers
Wagner Act (1935) – written by Leon Keyserling from SC
Original NLRA
Almost vetoed by FDR – Frances Perkins convinced Eleanor R to get FDR not to veto it
Supplied shield against exercise of employer power to frustrate the organization of employees for collective bargaining
Declared “unfair labor practices” of employers that violated basic rights of employees
Imposed a duty on employee to bargain with the union
Heavily favored labor organizations
Formed the NLRB
Constitutional under NLRB v. Jones & Laughlin Steel – effect is that it legitimized the new “branch” of government in administrative agencies like the NLRB
§7 gave employees the right to unionize and collectively organize and provided remedies for violations – union was the exclusive bargaining rep to determine wages/hours/benefits
The War years b/t Wagner and Taft-Hartley introduced arbitration/mediation as primary dispute resolution so that strikes would not interrupt the war effort
Unions struck anyway leading to a negative reaction to organized labor and a power shift in Congress to become Republican
Taft-Hartley Act (Labor Management Relations Act) - 1947
Vetoed by Truman but Congress overruled veto
Retained the unfair labor practices for employers in Wagner Act and reaffirmed the endorsement of collective bargaining
Gave president authority to declare a national emergency dispute to force the union and employer back to bargaining table and stop utilizing self-help tactics
Truman invoked it in Youngstown Steel to take over steel industry after a strike and SC struck it down
Added provisions defining unfair labor practices by labor organizations and gave workers the right to refrain
Appeared to take away the “secondary boycott” (picketing customers of the employer until the customer no longer is a customer of the employer)
Increased NLRB members from 3 to 5 and separated its prosecutorial and judicial functions
Suits in federal courts allowed to enforce collective-bargaining agreements
Right to Work laws = reaction to compulsory unionization in the collective bargaining agreement (“union compulsory clause” forces all employees to join the union w/in 30 days)
§14 left this provision to the states
§301 – exception to the Norris-LaGuardia Act – provides that an employer/employees can file in federal court for breach of K
Landrum-Griffin Act (Labor-Management Reporting and Disclosure Act) - 1959
Curbed abuses and improper union activities – amended the secondary boycott prohibitions and added prohibition against blackmail picketing (used to hurt the business enough to get recognition by the union)
Imposed fiduciary responsibility on unions – sometimes called the Union Members Bill of Rights
Fairness and financial disclosure
Jimmy Hoffa’s abuses led to the enactment
Amended the NLRA to tighten the Act’s secondary boycott provisions and the placing of restrictions on organizational and recognition picketing
Health Care Industry Amendments – 1974
NLRB declined to assert jurisdiction over non-profits or healthcare institutions over the years
Amendments to the NLRA to direct the NLRB to assert jurisdiction over these entities
NLRB has no jurisdiction over government entities
Notice requirement so hospitals can arrange for care when/if nurses strike
Future Legislation:
EFCA – would substitute NLRB election process with a card count certification; include interest arbitration as remedy for stalling negotiation process once union is recognized; includes punitive damages and mandatory injunctive relief as remedies
Respect Act – overturns “supervisor” cases
Arbitration Fairness Act – pre-dispute arbitration agreements could be used to get around remedies for civil rights violations

B. NLRB

1. Generally

Administrative procedures and remedies instead of judicial adjudication
Precluded private litigation to enforce workers’ statutory rights
Confined the role of the courts
Created to administer the statute

2. Jurisdiction

Primary measure of NLRB jurisdiction is “commerce”
§9(c)(1) & § 10(a)
Coextensive with the power of Congress to legislate under the commerce clause (Jones & Laughlin Steel)
Extends to:
Non-retail business
Office buildings
Retail enterprises
Public utilities
Newspapers
Radio/telegraph/television/telephone enterprises
Hotels/motels/residential apartment houses
Privately operated health care institutions
Transportation enterprises
Transit systems
Taxicab companies
Associations
DC enterprises
National defense
Private universities and colleges
Symphony orchestras
Law firms and legal assistance programs
Employers that provide social services
Lawful gambling casinos
§14(c) authorizes the Board to refuse jurisdiction over any employer whose labor dispute is not sufficiently substantial, but the Board cannot refuse a labor dispute over which it would have asserted jurisdiction under the standards of Aug 1 1959
“No Man’s Land” – If congress gave statutory jurisdiction to an agency then state’s can’t enter, but if NLRB does not assert jurisdiction then those orgs are left in the middle
Limited to enterprises whose affect on commerce is “substantial” and through the definitions of “employer” and “employee” in §2(2) and (3) and “supervisor” in §2(11)
Excluded from NLRB’s reach: agricultural workers, domestics, public employees (federal/state/local governments), fed reserve banks, RR and airlines subject to the Railway Labor Act, independent contractors and supervisors (including most nurses)
Hospitals: Exclusion of nonprofit hospitals was deleted by the 1974 healthcare amendments – today nonprofit hospitals, health-maintenance orgs, health clinics, nursing homes, and extended-care facilities are covered under §2(14)
House staff in hospitals (interns, residents, fellows) are statutory employees entitled to protection
Graduate Students: primarily students functioning in an academic relationship w/their school, not statutory employees entitled to organize (Brown University)
IL law = if student is workin in department related to studies = student; if not related = employee
No NLRA exclusion of students so conflicting decisions by Board
Public employees: under the Federal Labor Relations Authority (not NLRB) and are forbidden to strike (pg 60-61)
Religious schools: excluded workers in church-operated schools (Catholic Bishop of Chicago)
Independent Contractors – right of control test and on the basis of the total factual context assessed through agency principles
Wither the employee has control over how the work gets done or over just the work product
If employer controls the manor/result = employee
If employer contracts for result but nothing to do with the manor of execution = Independent Contractor
Agricultural workers
Excluded since 1935 – made sense during that period of time b/c of the recession and farm ownership
Supervisors
§2(11) defines supervisor as an individual who exercises independent judgment in performing their employment function, such as directing others, to hire, transfer, suspend, lay off, recall, promote, adjust grievances, etc. that is not merely of a routine or clerical nature
Context of nurses:
Nurses act on behalf of the employer, not exclusively on behalf of patients (NLRB v. Health Care)
Nurses generally “assign” tasks to others and often “responsibly direct others” (NLRB v. Kentucky River)
Managers
Non-statutory exclusion of managers – employer should have the loyalty of its managers who have authority to commit management resources to set institutional policy or implement policy at the highest levels
University faculty: termed “managerial” so they are excluded from the Act (Yeshiva University) but no hard and fast rule is adopted about faculty members
“Confidential” employees
Excluded even if they are statutory employees under §2(3)
Test = whether an employee assists and acts in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations (labor-nexus test)
Individual must have some connection to personnel and collective bargaining and either have access to materials or be present with those decisions are made
Example: secretary taking notes during meeting, person in charge of personnel files

3. Organization

Function = to prevent and remedy violations of the NLRA (unfair labor practices) and to conduct secret-ballot elections on the question whether employees which to be represented by a union
Members are appointed to 5 year terms by the President, subject to Senate confirmation
5 members that sit in 3 member panels
Adjudicative and prosecuting functions were separated in the Taft-Hartley Act
General Counsel oversees prosecuting functions and is appointed by the President with consent from the Senate for a 4 year term
§3(d) provides that the General Counsel supervises all NLRB attorneys and regional offices and gives GC final authority over the investigation of charges filed by aggrieved persons, issuance of complaints, and prosecution before the Board
Issuance of complaints is initially controlled by the regional directors and their decisions are subject to review by the GC
GC’s decision not to issue a complaint or to withdraw a complaint is not reviewable by the Board or by the courts but it does have procedures for giving the charging party reasons for refusal and appeals to its office
GC does not initiate ULP case on its own motion – requires a charge to be filed first

4. Procedure

Any person may file a charge in the regional office for the area where the ULP occurred
6 month statute of limitations – must file w/in 6 months of the violation
§10(b) provides a 6 month window for the individual to file a charge starting with the point when the claimant discovers or should have discovered the misconduct
Employees of the regional office will investigate the charges and discuss them with the parties – high % result in settlements before formal litigation before the board (90%ish)
Formal proceedings are begun by the issuance of a complaint and setting the time and place of hearing
A hearing on the complaint is held before an Administrative Law Judge (ALJ) who is appointed by the Board, independent of the Board, and can be removed only for “good cause”
The complaint is prosecuted by an attorney from the regional office but the charging party may intervene with own counsel
Rules of evidence apply (§10(b))
GC has the burden
ALJ files a “decision” setting forth findings of fact and proposed disposition of the case
If no exceptions, the Board usually adopts the decision of the ALJ
If exceptions are filed, then the Board will review the case on the basis of the briefs and w/o oral argument
§10(j) and (l) –(j) gives NLRB discretion whether to apply for injunction

5. Judicial Review

NLRB Review:
Typical remedial order of the NLRB is to “cease and desist” from the unlawful behavior and post notice of the action in the workplace (and reinstatement with back pay if appropriate)
ULP order is not self-executing – if compliance is not forthcoming, the Board must seek enforcement by petitioning the court of appeals (§10(e))
Enforcement order entered by the court = injunction and its violation is punishable by an action for contempt
Appeals to Federal Courts of Appeals
Any person aggrieved by a Board order may also seek judicial review in the appeals courts
§10(f) provides wider choice of forums for review than the Board has to seek enforcement so usually a forum-shopping race to file with a favorable appellate court after decision is handed down
Charging party cannot maintain a contempt action for violation of the judicially-enforced Board order, only the Board can do that
Scope of Review
§10(e) – findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, is conclusive
The court will uphold the Board’s decision if based on facts/substantial evidence and the Board’s “expertise”
Courts have less discretion in overturning an ALJ than the Board, whose policy is not to overrule the ALJ credibility determinations unless incorrectness is shown by a “clear preponderance of evidence”
In general, NLRB’s findings of law are reviewed to determine whether they have a reasonable basis in law and are upheld unless they are “irrational” or “inconsistent” with the Act
Two part test of deference: did Congress directly speak on this issue and if not then is the Board’s decision based on a permissible construction of the statute

II. The Election Process - §8(a)(1) Violations (Assignment 3)