The National Labor Relations Act (NLRA) & The National Labor Relations Board (NLRB)

1. The National Labor Relations Act (NLRA) & The National Labor Relations Board (NLRB) What it is, What it does

2. The National Labor Relations Act (NLRA) • Basic law governing relations between labor unions and employers whose operations affect interstate commerce. • Basic Rights of employees: • To self-organize • To form, join, or assist labor organizations • To bargain collectively about wages & working conditions through representatives of their own choosing • To engage in other protected “concerted activities” • To refrain from any of these activities. • The Act prohibits both employers and unions from violating these employee rights.

3. Purpose of the Act • “It is in the national interest of the United States to maintain full production in its economy. Industrial strife among employees, employers, and labor organizations interferes with full production and is contrary to our national interest” • Section 1 of the act declares that the policy of the US is to be carried out “by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection”.

4. Enforcement • The NLRA is administered & enforced principally by the National Labor Relations Board (NLRB) & the General Counsel (GC) acting through 52 regional & other field offices (page 58). • The GC has final & independent authority on behalf of the NLRB, with respect to the investigation of charges & issuance of complaints

5. NLRB Authority“Enterprises whose operations affect commerce” • NLRB authority is derived from Congress’s authority under the commerce clause of the US Constitution. • Jurisdictional Standards: are based on the yearly amount of business done by an enterprise or on the yearly amount of its sales or purchases. Stated in terms of total dollar volume of business & are different for different kinds of enterprises (p. 62 Basic Guide)

6. Exempt Employees • The Act does not cover certain individuals: • Agricultural laborers • Domestic servants • Any individual employed by his parent or spouse • Independent contractors • Supervisors – Job titles are irrelevant – defined under the act as any individual who has the authority, acting in the interest of an employer, to cause another employee to be hired, transferred, suspended, laid off, recalled, promoted, discharged, assigned, rewarded, or disciplined, either by taking such action or recommending it to a superior; requires the exercises of independent judgment; • Individuals employed by an employer subject to the Railway Labor Act • Government employees, including those employed by the U.S. government, any Government Corporation or Federal Reserve Bank, or any State or political subdivision such as a city, town, or school district.

7. NLRB Procedures • Supervision of Representation Elections: • Initiated by the filing of a petition • Investigates to determine if there is reasonable cause • Direction of an election by secret ballot and certification of the results • Processing of Unfair Labor Practice (ULPs) Charges(page 59): • Procedure begins with the filing of a charge • Charge may be filed by a employee, an employer, a labor organization, or any other person • Charge must be filed at appropriate Regional Office • Complaint will be issued only after investigation by the Regional office – • If Regional Director refuses to issue a complaint, party may appeal to GC • Board may defer to arbitration process if one exist • Hearing of complaints are before an NLRB Administrative Law Judge (ALJ) • ALJ makes findings of fact and recommendations to the NLRB • If the NLRB determines a ULP has occurred, the board is authorized to issue an order requiring such person “to cease and desist from such practices and to take appropriate affirmative action”.

8. Power of the NLRB • Powers concerning investigations: • Examine & copy • Issue subpoenas • Administer oaths , examine witnesses, & receive evidence • Obtain court orders to compel production of evidence or the giving of testimony • The Act is remedial, not criminal: • Board is authorized to issue a cease-and-desist order and reinstatement of employees with or without back pay • Affirmative action may be ordered by the Board: • Court Enforcement: Board may petition the U.S Court of Appeals for enforcement of orders

9. Rights of Employees • Section 7 – Concerted activities – • Examples: • Forming or attempting to form a union • Joining a union • Assisting a union to organize • Going out on strike to secure better working conditions • Refraining from activity on behalf of a union • Union Security – under certain condition, a union and an employer may make an agreement that requires employees to make certain payments to the union in order to retain their jobs. • Union Shop Agreements – employees may be required to pay full initiation fees and dues within the “grace period” or loose their jobs (usually 30 days). 7 day grace periods allowed in building & construction industry. • Closed Shop Agreements – require union membership before employment – are illegal. Pre-hire agreements in construction industry are permitted. • Section 14(b) - Right to Work: individual states may prohibit certain forms of union-security agreements - http://www.nrtw.org/rtws.htm .

10. Right to Strike: Under Section 7. employees have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protections – strikes are included. Section 13 also concerns the right to strike.

11. Rights of Strikers • Economic strikers: if the objective of the strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the strikers retain their status as employees and cannot be discharged. They can be replaced. • Unfair Labor Practice strikers: employees who strike to protest an unfair labor practice committed by their employer – such strikers can be neither discharged nor permanently replaced. When strike ends, ULP strikers, absent serious misconduct, are entitled to have their jobs back even if employees hired to do their work have to be discharged. • Unlawful strikers: no reinstatement rights. • Misconduct of strikers: examples on page 5 of Basic Guide.

12. Employer Unfair Labor Practices • Unfair Labor Practices (ULPs): • Section 8 (a) – Employer ULPs • Section 8 (b) – Labor Organization ULPs • Section 8 (e) – ULPs that can be committed only by an employer and a labor organization acting together.

13. Section 8 (a) • 8 (a) (1) – Interference with Section 7 rights – forbids an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. • Examples: • Threatening employees with loss of jobs or benefits if they should join or vote for a union • Threatening to close down the plant if a union should be organized in it • Questioning employees about their union activities or membership in such circumstances as will end to restrain or coerce the employees • Spying on union gatherings, or pretending to spy • Granting wage increases deliberately timed to discourage employees from forming or joining a union.

14. 8 (a) (2) – Domination of, Illegal Assistance & support of a labor organization. • 8 (a) (3) – Discrimination against employees • Union Salts – Refusing to hire qualified applicants for jobs because they belong to a union. • 8 (a) (4) – Discrimination for NLRB activity – retaliation for giving testimony or filing charges. • 8 (a) (5) – Refusal to Bargain in Good Faith. • 8 (e) – Entering a Hot Cargo Agreement – (hot goods agreement)

15. Union Unfair Labor Practices • 8 (b) (1): Restraint and Coercion of Employees • 8 (b) (1) (B): Restraint & Coercion of Employers • 8 (b) (2): Causing or attempting to cause discrimination • 8 (b) (3): Refusal to bargain in good faith • 8 (b) (4): Prohibited Strikes & Boycotts – secondary boycott provisions; picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

16. 8 (b) (5): Excessive or discriminatory membership fees • 8 (b) (6): Featherbedding – forbids a labor organization to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. • 8 (b) (7): Organizational & recognitional Picketing by Non-certified Unions: • 8 (e): Entering a Hot Cargo Agreement • 8 (g): Striking or Picketing a Health Care Institution without notice

17. Representation Cases • The act requires that an employer bargain with the representative selected by its employees. The most common method by which employees select a bargaining representative is a secret-ballot election. • The appropriate bargaining unit: • A unit of employees is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. Determination of the appropriate unit is left to the discretion of the NLRB.

18. Limitations on NLRB discretion: • 9 (b) (1): Board shall not approve as appropriate a unit that includes both professional and non-professional employees, unless a majority of the professional employees involved vote to be included in the mixed unit. • 9 (b) (2): shall not hold a craft unit to be inappropriate simply because a different unit was previously approved, unless a majority of the employees vote in the proposed craft unit vote against being represented separately. • 9 (b) (3): prohibits including plant guards in the same unit with other employees.

19. Determining Appropriateness of a Unit • Determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. • Factors considered include: • Any history of collective bargaining • The desires of the employees concerned • The extent to which the employees are organized • The NLRB as a matter of policy, excludes from bargaining units employees who act in a confidential capacity to an employer’s labor relations officials.

20. Representation Election Process • Petition for certification of representatives: • Petition for decertification election: must be initiated by the employees • Union-security deauthorization: • Showing of interest required: all of the above must be supported by 30% of the members of the appropriate bargaining unit • Bars to Election: • Time (Contract bar rules): a valid contract for a fixed 3 years or less will bar an election for the period covered by the contract. • Certification of Results: If an election is held and no representative is certified, the election bars another election for 12 months.

21. The Election Process • Who determines election matters? • Who may vote in a representation election? • When strikers may be allowed to vote: • When elections are held: • Conduct of elections:

22. Collective Bargaining • Duty • Steps • Bargaining in Good Faith (8) (a) (5)