1 / 79

LABOR LAW STEPHEN B. FORMAN

LABOR LAW STEPHEN B. FORMAN . GEORGE MASON UNIVERSITY SCHOOL OF LAW. CLASS #1 Course Overview; Evolution of the Labor Laws; NLRB Jurisdiction, Organization and Procedure. Course Administration Course Overview Evolution of the Labor Laws and Overview of NLRA Provisions NLRB Organization

lorie
Download Presentation

LABOR LAW STEPHEN B. FORMAN

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. LABOR LAW STEPHEN B. FORMAN GEORGE MASON UNIVERSITY SCHOOL OF LAW

  2. CLASS #1Course Overview; Evolution of the Labor Laws; NLRB Jurisdiction, Organization and Procedure • Course Administration • Course Overview • Evolution of the Labor Laws and Overview of NLRA Provisions • NLRB Organization • Unfair Labor Practice Proceedings • Representation Proceedings • NLRB Jurisdiction

  3. CLASS #1Course Overview

  4. CLASS #1Course Overview Continued

  5. CLASS #1Course Overview Continued

  6. CLASS #1Evolution of the Labor Laws and Overview of the NLRA • The Wagner Act (1935) • sections 7, 8 • The Taft-Hartley Act (Labor Management Relations Act of 1947) • sections 7, 8(b), (c), (d), 9(c), 10(b), (j), 14(b), 301, 303 • Landrum-Griffin Act (Labor Management and Reporting Disclosure Act of 1957) • sections 8(b)(7), 8(e), (f) • Health Care Institution Amendments of 1974

  7. CLASS #1Section 7 Employee Rights § 7. Rights of employees as to organization, collective bargaining, etc. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3)

  8. CLASS #1Section 8(a) Employer Unfair Labor Practices • § 8. Unfair labor practices (a) Unfair labor practices by employer. It shall be an unfair labor practice for an employer-- • (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 • (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it • (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization • (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act • (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)

  9. CLASS #1Section 8(b) Union Unfair Labor Employment Practices § 8(b) Unfair labor practices by labor organization. It shall be an unfair labor practice for a labor organization or its agents-- (1) to restrain or coerce employees in the exercise of the rights guaranteed in section 7 (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) (3) to refuse to bargain collectively with an employer (4) (i) to engage in, or to induce or encourage any individual to engage in, a strike or (ii) to threaten, coerce, or restrain any person where in either case an object thereof is --- (7) to picket or cause to be picketed any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization unless such labor organization is currently certified as the representative of such employees where -

  10. CLASS #1NLRB Organization and Procedures • The Board • The General Counsel • The Administrative Law Judges • The Regional Offices • Unfair Labor Practice Procedures • Representation Procedures

  11. CLASS #1Jurisdiction and Coverage of the NLRA • Territorial US • Section 2(2) Exclusions • Assertion of Commerce Coverage • Section 2(3) Definition of Employee • interns and residents • salts • supervisors • managerial employees • confidential employees • independent contractors

  12. CLASS #1Section 2(11) Definition Of A Supervisor

  13. CLASS #2Interference, Restraint and Coercion • Section 8(a)(1) • Union Buttons and Insignias • No Solicitation/No Distribution Rules • facial invalidity, unlawful promulgation, unlawful enforcement • Non-Employee Access Rights • Off-Duty Employee Access Rights • Captive Audience Speeches • Excelsior Underwear Rule • E-Mail

  14. CLASS #2Section 8(a)(1) Unfair Labor Practice § 8(a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7

  15. CLASS #2No Solicitation/No Distribution Rules For Employees NOTICE SOLICITATION BY EMPLOYEES ON COMPANY PROPERTY DURING WORKING TIME IS PROHIBITED DISTRIBUTION OF LITERATURE BY EMPLOYEES ON COMPANY PROPERTY DURING WORKING TIME OR IN WORKING AREAS AT ANY TIME IS PROHIBITED

  16. CLASS #2No Trespassing Notice NOTICE SOLICITATION AND/OR DISTRIBUTION OF ANY LITERATURE BY NON-EMPLOYEES ON COMPANY PROPERTY IS PROHIBITED

  17. CLASS #3Election Propaganda, Other Forms of Interference, Restraint or Coercion, Union Misconduct • TWIGS • Threats • balance free speech with uncoerced employee free choice • overturning elections if laboratory conditions are violated, even if not ULP • direct or implied threats (unlawful) versus predictions (lawful) • Factual Misrepresentations During Election Campaign • racial inflammatory appeals • Timing of Laboratory Period

  18. CLASS #3 • Interrogation and Polling • Spying or Surveillance • Granting (or promising to grant) Benefits • Withholding Benefits • Remedies • Union Misconduct

  19. CLASS #3Section 8(c) Free Speech Provision

  20. CLASS #4 Company Domination, Interference or Assistance • Section 8(a)(2) • Section 2(5) - What is a Labor Organization • Domination, Assistance, Interference • continued recognition of incumbent union in face of rival union organizing • initial recognition of union when a rival union is also organizing

  21. CLASS #4Section 8(a)(2) Unfair Labor Practice Sec. 8 (a) It shall be an unfair labor practice for an employer- (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay

  22. CLASS #4Section (2)(5) Definition (5) The term 'labor organization' means any organization of any kind, or any agency or employer representation committee or plan, in which employees participated and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work

  23. CLASS #5 Discrimination and Remedies for Unfair Labor Practices • Section 8(a)(3) ULP And Section 10(c) Just Cause • Pretext and Dual Motive Cases And Burden Of Proof • small plant doctrine • Court Standard For Review Of Board Decisions • Constructive Discharge

  24. CLASS #5Section 8(a)(3) Unfair Labor Practice § 8 It shall be an unfair labor practice for an employer— (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization

  25. CLASS #5Section 10(c) No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause.

  26. CLASS #5 Discrimination and Remedies for Unfair Labor Practices • Limitations on backpay remedy • after acquired evidence • illegal aliens • Closing Employer’s Business • complete business closing • partial business closing • Limited Protection For Supervisors • Reinstatement and Mitigation Of Damages • Statute Of Limitations • Injunctive Relief Under Sections 10(j) and 10(l)

  27. CLASS #6 Selection of Bargaining Representative – Section 9 • Voluntary Recognition • neutrality and card check agreements • Types of Elections (RC, RD, UD, UC) • RM (union demand for recognition; loss of support) • Showing of Interest • exception - expedited election under 8(b)(7)(C) • Blocking Charge • Unlawful Employer Assistance • Fluctuating Workforce • Timeliness of Petition • section 9(c)(3) statutory bar (1 yr) • administrative bar (6 months) • certification bar (1 yr) • voluntary recognition bar (reasonable time)

  28. CLASS #6 • Contract Bar Doctrine • open period; insulated period; expanding unit • Accretion • Election Procedures • Board poster; commerce questionnaire • consent elections • hearing and direction of election • eligibility list • notice of election • pre-election conference and election observers • balloting, challenges, objections • run-off and re-run elections

  29. K bar Open Period Insulated Period CLASS #6Contract Bar Doctrine K Starts K Ends K period Post K Termination Period

  30. Runoff Election Nullity and Rerun Election Certification of Results CLASS #6Runoff and Rerun Elections

  31. CLASS #7 Appropriate Bargaining Unit • Community of Interest Standard • Multi-factor analysis • Special rules for craft employees and grouping professional and non-professional employees • Special rules for health care facilities • Guards • Supervisors • Single Location vs Multiple Locations • Single location presumption

  32. CLASS #7 Appropriate Bargaining Unit • Multi-employer Unit • Recognition • Withdrawal • Coordinated Union Bargaining • Temporary Employees • Review of Representation Proceedings • 8(a)(5) refusal to bargain challenge

  33. CLASS #8 Securing Bargaining Rights through Unfair Labor Practice Proceedings • Obtaining Union Recognition • recognition through a voluntary card check or non-NLRB election • employer refusal to do card check • RC election • Gissel bargaining order

  34. CLASS #9 Company Withdrawal Of Union Recognition • Withdrawal Of Recognition • certification and recognition bars • employer withdrawal of recognition - actual union loss of majority support (Levitz Furniture Co.) • RM petition to decertify union – good faith uncertainty (Levitz Furniture Co.) • polling employees - Allentown Mack

  35. CLASS #10Negotiation of the Collective Bargaining Agreement and the Duty to Bargain in Good Faith • Sections 8(a)(5) and 8(b)(3) • Individual Employee Contracts • Good Faith Bargaining • Surface Bargaining • Hard Bargaining vs. Bad Faith Bargaining • Regressive Bargaining

  36. CLASS #10Section 8(a)(5) Unfair Labor Practice § 8(a) It shall be an unfair labor practice for an employer—

  37. CLASS #10Section 8(b)(3) Unfair Labor Practice § 8(b) It shall be an unfair labor practice for a labor organization or its agents-- • (3) to refuse to bargain collectively with an employer,provided it is the representative of his employees subject to the provisions of section 9(a)

  38. CLASS # 10Section 8(d) • Section 8 (d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, [notice period [prior to making changes]

  39. CLASS #10The Duty to Disclose Information • Disclosure of Information • bargaining unit/non-bargaining unit • A Union Strike While Still Bargaining • Employer Obligation to Continue Bargaining • Employer Action Against Strikers • protected strike/unprotected strike • Employer Pre-Impasse Unilateral Action/Post Impasse Action

  40. CLASS #11Subjects of Collective Bargaining • Mandatory, Permissive and Illegal Subjects of Bargaining and Their Effect on the Duty to Bargain

  41. CLASS #11Differences Between Mandatory and Permissive Subjects of Bargaining for a New Contract • Cannot Refuse to Bargain at Request of Other Party if mandatory • Cannot Insist to Impasse on Inclusion of Item in the Contract if permissive • Cannot Unilaterally Implement Without Bargaining to Impasse if mandatory • Cannot Refuse to Disclose Relevant Information Requested by Other Party if mandatory

  42. CLASS #11Mandatory Bargaining Subjects That Can Be Unilaterally Changed Without Bargaining After Contract Expires • No Strike Clause • Requirement to Arbitrate Grievance • Union Shop and Dues Check-off

  43. CLASS #11Collective Bargaining Subjects • Sub-contracting • Shutting Down Part of the Business for Economic Reasons • Relocating the Business • Effects Bargaining • Mid-term Contract Modifications • Effect of the Strike on the Employer’s Right to Act Unilaterally

  44. Subject is Included in CBA not required to bargain at request of other party cannot modify w/o other party’s consent Subject is not Included in CBA must bargain at other party’s request if mandatory subject can modify mandatory subject after bargaining to impasse; can modify permissive subject w/o bargaining CLASS #11Mid-term Contract Modifications

  45. CLASS #12Protected Concerted Activity • Section 7 Rights • Concerted Activity • individual vs. concerted activity • asserting CBA rights • asserting statutory rights • Weingarten rights? • Protected Activity • working conditions outside employers immediate control

  46. CLASS #12Protected Concerted Activity • Unprotected Activity • product disparagement/disloyalty • unprotected objective/unprotected method of employee protest • partial strike, slowdown, intermittent strike, sit-down strike • CBA waiver of right to strike • sympathy strike; ULP strike

  47. TYPES OF EMPLOYEE ACTION unprotected strike economic strike sympathy strike ULP strike TYPES OF EMPLOYER RESPONSE TO STRIKE fire strikers temporarily replace strikers permanently replace strikers superseniority to replacements and non-strikers withholding benefits from strikers CLASS #13Employer Responses to Concerted Activities

  48. CLASS #13Employer Lockouts • Defensive lockout • Multi-employer lockout • Offensive lockout • Lockout replacements

  49. CLASS #14Class Demonstration - Collective Bargaining Negotiations • Stephen B. Forman - Major Container Company • Henry Morris, Jr. - United Paperworkers International Union, AFL-CIO

More Related