The National Labor Relations Act

1. The National Labor Relations Act

2. The National Labor Relations Act (NLRA) • Purpose: Provide workers with legal protection in their rights to organize and bargain collectively through representatives of their own choice • Coverage: Firms engaged in interstate commerce - set in terms of the Dollar volume of business the firm does annually. (pp. 62-63 Twomey). • Enforcement: The National Labor Relations Board (NLRB) (Offices & Basic Procedures pp. 58-59 Twomey). • http://www.nlrb.gov/ • Exempt Employers: Federal Govt.; State or political subdivisions; Railroads, Airlines, or Companies subject to Railway Labor Act (RLA); Foreign crews on foreign flag vessels temporarily in US ports; Certain Religious Organizations; • Exempt Employees: Agricultural Laborers; Domestics within a person’s home; individuals employed by a parent or spouse; Independent contractors; Supervisors.

3. Administration of the NLRB • Five member board appointed by the president • General Council: responsible for investigation & prosecution of the act • Regional Directors: • Board has delegated its authority over representation elections to the regional directors. • General Council has delegated authority to issue complaints in unfair labor practice (ULP) cases to the regional directors • Administrative Law Judges (ALJ): conduct formal hearings on ULP complaints issued under authority of the General Council. ALJ decisions may be appealed to the Board.

4. Key Points • An employee does not have to be a member of a union. A certified union does not have to be involved, and there does not have to be an organizing drive in existence for an employee to have protection under the NLRA. Section 7 of the Act guarantees all employees the right to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection. • Section 8(a)(1) prevents employers from interfering with employees attempting to exercise Section 7 Rights; Its an Unfair Labor Practice to interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7.

5. The NLRB • The NLRB handles two kinds of legal questions: 1. Unfair Labor Practice Charges & 2. Representation Elections • The NLRB does not initiate proceedings • The NLRB does not restrict who can file ULP • Election Petitions may be filed by either employees or the employer • Section 7 of the act guarantees all employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection

6. Selecting the Appropriate Bargaining Unit • In most nonunion companies, current employees initiate the union organizing process. • The initial phases of the process are carried out in secret. • When management does find out, the typical reactions are: shock, frustration, & anger. • One of management’s biggest mistakes at the beginning of the process is to underestimate the union organizer. • Employees must present a 30% showing of interest to initiate formal proceedings.

7. Election Process • The NLRB supervises two basic types of election processes: 1. Certification 2. Decertification. • Certification elections determine if the employees will or will not be represented by a union. The union wins if 50% plus 1 of those who vote in the election,vote for the union. • Decertificaiton elections must be initiated by the employees and are an attempt to remove a union as the exclusive representative of the employees. • The role of the 1st line supervisor is critical in both types of elections.

8. Election Conduct & Free Speech • Pre-election rules – • Peerless Plywood “24 hour rule” – prohibits both unions and employer from delivering speeches to captive audiences within 24 hours of an election. • Excelsior Underwear – employers required to provide a list of names and addresses of all employees eligible to vote in a representation election (Excelsior List). Must be provided within 7 days after an election has been directed or agreed upon. • Violation of these rules may be grounds for setting aside an election. • Employer Free Speech – • “No threats of reprisal or force or promise of benefit”; Gissel Packing Co. case – employer may state “likely economic consequences of unionization that are outside the employer’s control”. • No-solicitation rules – • General rule: employer may prohibit union solicitation by employees during work periods; • E-mail: employer must consistently enforce policy • Necessity of Non-discriminatory enforcement of Rules: St. Margaret Mercy Healthcare Centers v. NLRB case.

9. Union Organizing Initiatives • Change to Win Coalition – http://www.changetowin.org/ • UNITE – http://www.unitehere.org/ • SEIU – http://www.seiu.org/ • Union Salting - http://www.fklaborlaw.com/union-salting.html • Card Check and neutrality agreements - http://www.nrtw.org/neutrality/info

10. Unfair Labor Practice Charges • Charge process begins at NLRB regional office • Regional office investigates & promotes settlement or withdrawal of complaint • Regional director can issue a formal complaint or dismiss the charge • If a complaint is issued, a hearing is held before an Administrative Law Judge (ALJ) • ALJ issues findings of fact and recommendation • NLRB reviews and makes final order • Board seeks enforcement or parties seek review in U.S. Court of Appeals

11. Collective Bargaining • Bargaining in good faith: Both parties must meet a reasonable times to discuss wages, hours, and terms and conditions of employment • Any agreement reached must be put in writing if either party so request • Must bargain with the representatives of the employees • Mandatory subjects: subjects that vitally effect the terms and conditions of employment - broadly interpreted by the NLRB – economic impact - • Prohibited Subjects - Proposals that violate the NLRA or other laws. For example, a closed shop agreement or hot cargo clause.

12. Union Security Clauses • *Agency Shop: All members of the bargaining unit must either be members or pay a representational fee to the union • *Union Shop: All employees must join the union within a certain period after hiring • Closed Shop: Individuals must belong to the union before hire (illegal) • *Outlawed in “right to work” states

13. Other procedural requirements • Duty to furnish information: when an employer pleads inability to pay in response to a union demand, the employer must provide financial information to support the claim • Notification requirements: 60 days prior to expiration of an agreement - strikes or lockouts prohibited during 60 day “cooling off” period • Disputes must be referred to the Federal Mediation and Conciliation Service (FMCS)

14. Dispute Settlement • Grievance Procedures and Arbitration • Grievance procedure – a procedure for settling disputes set forth in the collective bargaining agreement. • Arbitration – the settlement of disputes by a neutral adjudicator chosen by the parties to the dispute: Two types – Interest arbitration & Rights Arbitration

15. Arbitration • 1. Interest Arbitration - used to create a new agreement (usually found in the public sector) • 2. Rights Arbitration - disputes involving the interpreting of an existing collective bargaining agreement. Generally the final step in the grievance procedure. • Grievance Procedure: A complaint that either party to the agreement is not living up to the obligations of the agreement – collective bargaining during the life of the agreement.

16. Strikes • Strike: the organized withholding of labor by workers • General Types: • Economic: related to a dispute with employer over wages, hours, and or working conditions.Often associated with negotiation of a new contract. Strikers may be permanently replaced by strike replacements. (NLRB v. Mackay Radio, 1938) • Unfair Labor Practice: individuals who go out to protest an unfair labor practice of an employer – ie. Firing a union leader because of union activity. When strikers protesting make an unconditional request to return to work, employer may not employ replacement workers in preference to the strikers.

17. Regulating Internal Union Conduct • Union’ Duty of Fair Representation – union officials have a duty to provide fair and nondiscriminatory representation for all person in a bargaining unit. • Union Members Rights – is an ULP to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 • Unions can fine members for crossing a picket line • Unions can fine members who exceed a union piecework rule