CH 4 Jurisdiction

Question 1

Who may file a charge? When must a charge be filed?

Answer 1

employer, employee, union

6 months after ULP or knowledge of one

Question 2

When the Board makes a decision and it gets appealed to the court of appeals, what is their job?

Answer 2

the court of appeals now reviews the facts and procedures of the case; they cannot substitute their judgement

Question 3

Who are employers under the Act? Who is not?

Answer 3

Employers NOT affecting commerce are considered under the Act. Those excluded from the Ac are:

• federal, state, or municipal corporations
• federal reserve banks
• railroads, airlines, and related companies
• labor organizations in their own representation capacity but NOT in the capacity that they are hiring their own workers

Question 4

What does the Board look at for its jurisdiction?

Answer 4

volume of business

Question 5

Does coverage of the NLRA extend to lay teachers in church operated schools?

Answer 5

no because a church operated school has a different relationship with its teachers that a non church operated school and the Court wants to keep in accordance with separation of church ad state

Question 6

Jurisdiction over “contingent workers” takes on 3 different definitions:

Answer 6

principal-employer who is legally responsible and employs agents to act on their behalf
agent-acts on behalf of principle (could be an employer; responsibility still falls on the principle unless agent acts outside authorization
IC- one who is under contract to perform independent acts; they are responsible for their own actions as long as they are left free from interference or control

Question 7

How can we tell an IC?

Answer 7

there is a 7 part test; in NLRB v. United Insurance.. it was determined that Congress intended this test be used

Question 8

There are two cases that are very similar dealing with classifying drivers as IC or not. Discuss the two case differences.

Answer 8

In Roadway Package System and Teamsters drivers were considered employees NOT IC’s. Dial-a-Mattress Operating Corp determined its drivers IC

Question 9

There are a growing # of contingent workers. Give examples:

Answer 9

IP’s. temporary-help agency workers, and contract company employees

Question 10

Who are employees covered under the Act? NOT covered?

Answer 10

applicants, current and past employees
ag laborer, domestic, employee of parent or spouse, IP, supervisor, employee of R.L.A. employer, managerial employees and confidential employee

Question 11

In NLRB v. Town and Country Elec. what was the outcome of the 1 workers that was hired and then fired after discovering he was part of a union?

Answer 11

applicants are considered employees

Question 12

If an employer enforces non-solicitation rules, they are allowed to do what?

Answer 12

tell non union workers to not distribute literature on the property

Question 13

Which states do classify ag workers as employees?

Answer 13

Wisconsin, Hawaii, and California, Massachusetts if workforce is >4; Arizona also has certain restrictions

Question 14

What is the definition of a “supervisor”?

Answer 14

has authority to hire, transfer, suspend, layoff, recall, promote, discharge assign, reward, or discipline other employees, or direct them to adjust their grievances or recommend such action

Question 15

In Oakwood Healthcare Inc. what was the ruling on the 12 nurses that wanted to unionize?

Answer 15

they were considered supervisors and were not allowed to unionize

Question 16

What is the definition of a managerial employee?

Answer 16

those who formulate, determine, and effectuate an employers policy

Question 17

What is the definition of a professional employee?

Answer 17

involved in intellectual work, result from this work cannot be standardized, requires advanced knowledge

Question 18

In NLRB v. Yeshiva University, were faculty members considered professional employees covered by the Act or managerial workers excluded from the Act?

Answer 18

they were considered managerial employees due to the large influence they had on the schools operations

Question 19

What does preemption look at and what does it mean?

Answer 19

Preemption asks this question: Do parties seeking help look only to the NLRB and federal government or can they seek an alternative state remedy?
Preemption says that federal law will override state law.

Question 20

What are the 2 cases in which the state law cannot stand?

Answer 20

1) it is in direct conflict with a federal law

2) where there is evidence that Congress intended to foreclose state action

Question 21

What is the general rule regarding state law and preemption? What case established the general rule?

Answer 21

unless there is an overriding state interest, states must defer to the exclusive competence of the NLRB where the subject of the case is originally subject to the NLRA
San Diego Building Trades Council v. Garmon

Question 22

Sears Roebuck and Co. v. San Diego…refined the Garmon rule. How?

Answer 22

argued that you cannot only look at if the activity is protected/prohibited by Sec. 7 or Sec. 8; you must also look at if the matter that was presented to the state court is similar to what would go to the NLRB. It also must be found that both parties did not present the issue to the NLRB and the party who did not file had no intention to

Question 23

What is considered allowable state action?

Answer 23

violence, libel, and fair representation

Question 24

Where are state laws NOT to be preempted?

Answer 24

1) federal and state have concurrent jurisdiction over violation of CBA’s
2) states are specifically granted the power to make right-to-work laws

Question 25

There is a second preemption doctrine established called the Machinists’ preemption rule.

Answer 25

prohibits state and municipal regulation where Congress specifically left an area unregulated

Question 26

The city of Los Angeles violated the machinists’ rule when…

Answer 26

they intervened in a labor dispute between a cab company and the Teamsters union