Definitions within Collective Bargaining Flashcards
Employee - NLRA
Section 2(3)
Any employee, and shall not be limited to the employees of a particular employer” unless the Act . . . explicitly states otherwise, and
shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who as not obtained any other regular and substantially equivalent employment
NOT an employee under NLRA
ag worker, domestic service of family or person at their home, individual employed by parent/spouse, independent contractor, supervisor, RLA employee
Implicit Exemption of employee
managerial and confidential employees
Contingent worker
NOT NLRA covered
no explicit contract of ongoing employment
Lease and subcontractors
Independent Contractors
NOT NLRA protected
Cannot bargain collectively by antitrust laws
Many IC’s do not have rights
Big advantage to companies
Economic Realities Test
Workers are employees under the NLRA if the realities if the situation, they economically dependent and would benefit from application of the Act
Congress did not like went to right to control
Is used in FLSA, FMLA
Right to Control Test
Comes from tort respondeat superior
Totality of the circumstances of wether the hiring party controls the manners and means of work
Right to Control Factors
skills required
source of instrumentality and tools
location of work
duration of work
whether right to assign additional projects
Hired part’s discretion over when/how long to work
method of payment
hired party’s role in hiring + $ assistants
work is part of the regular business of the hiring party
provision of employee benefits
tax treatment
Darden
Supreme court has stated the right to control is default test for looking at employee without further elaboration
Economic realities factors
degree of alleged employer’s right to control in the manner which the work to be performed
opportunity for profit or loss depending on managerial skill
employee investment in equipment/materials, or helpers
service requires special skill
degree of permanence of work
service is integral to employer’s business
Hybrid test
examine the facts of the work relationship and look for control or economic dependence
Totality of circumstances
ABC Test
interpreting STATE laws
NOT A TOC test
burden on the employer with presumption that one is an employee unless proven otherwise
Roadway Package Inc.
Looking at the totality of the circumstances and the common law control test, the functions of the drivers are essential to the business, have the company logo, not available outside business, no outside entrepreneurialism
Home Health Care Workers Getting Organized
Healthcare workers are often independent contractors, cannot unionize
Public authority model from CA
Leased employees
employer 1 leases employees from employer 2 to work in shop next to Employees of Employer 1
Oakwood
Employees can be employees of both employers, and employees need consent to bargain with multiple employers
Overruled Sturgis
Miller Anderson Inc.
No consent is needed consisting of employees who are both solely an jointly employed
Section 9(b)
Board can decide whether employees the fullest freedom in exercising rights, the unit appropriate to CS
KEY - community interest
Community interest in leased employees
KEY to be in bargaining unit
Employees of subcontractors
employees of a subcontractor, for the purpose of law, is an employee of contracting company if there is a common law community of interest
Union organizers (paid professionals)
Outsiders on a payroll for a union that raise awareness have the right to solicit in non-work areas during non work times
Republic Aviation Corp.
Union employees have the right to solicit for the union on company property in non-work areas during non-work time
Lechmere Inc.
Section 7 only protects employees and DOES NOT protect union employee organizers except in RARE occasions where it is like impossible to get to them
Babcock exception
Weighing the employee’s activities in their right to get private information on private property of employer after work hours WITH the employers right to control their own property
Town and Country Electric
NLRA does not prohibit nonemployee from organizing, but provides protection for those that do choose to organize
NLRB from 2000 and before on student workers
NOT employees
Trustees of Columbia
NLRB has authority to treat TAs as employees where they perform work at the discretion of university, for which they are compensated
Overturned Brown
Northwestern Football case
NLRB did not allow them to do so because they were public university kids
Hoffman Plastic Compounds, Inc.
Board may fashion rewards with limits, including if illegal aliens run counter to IRCA
No backpay because bad for federal policy
Sure-Tan
NLRA applied to undocumented workers but to avoid conflict with INA the Board’s restatement order was conditioned upon proof of legal reentry
Remedy for undocumented workers
cease and desist
posting illegal practices
Multi-country employees
Under Pico Korea, multiple coutnry employees are NOT employees
NLRA 2(11)
Supervisors holds authority in the employer’s interest; exercises the power to recommend action, uses independent judgment
NLRA 2(11) factors
hire, fire, train, transfer, recall, discharge, assign, reward, direct work
Oakwood Healthcare
If they routinely assign other staff and have independent judgment, they are supervisors
Burden on asserting supervisor?
The person asserting supervisory states
Part-Time Supervisors
Only if they spend a regular and substantial portion of time going supervisory things
Can supervisors organize?
Yes - just not protected
Managerial Employee
“who formulate and effectuate management policies by
expressing and making operative the decisions of the employer” they are “much higher” than the
employees explicitly mentioned in the Act and so clearly outside the purview of the Act no
express exception necessary.
Confidential Employees
consists of “only those who assist and “act in a confidential capacity
to persons who exercise managerial functions in the field of labor relations”
Yeshiva
full-time faculty members of Yeshiva qualify as managerial (curriculum, grading, admissions, teaching, course schedules, etc.)
NLRA (2)(2) - Hawkins Test
An entity created directly by the state to constitute a department or administrative arm of the state
OR
those are responsible to public officials
PA Charter School (Hawkins Test)
A privately founded & administered charter school is not a political subdivision under the National Labor Relations Act.
Entities created by private individuals as nonprofits corporations are NOT exempt under the Hawkins
Double Breasting
Unionized employer may establish a non-union entity through which business can be
conducted, and workers can be hired, without the restrictions on wages, benefits, and
working conditions that ordinarily would be imposed on i
Single Employer Doctrine
To determine an entity is a single employer, the Board takes a two-step analysis:
1) interrelated operations, common management, common ownership, centralized control of labor relations (most important)
2) determine the community of interest - Friendly
Mercy Hospital
common ownership, common management, centralized control of labor relations (most important)
Alter Ego Doctrine
involves an effort to avoid a collective bargaining obligation through a sham transaction
FACTORS:
substantial identical management, business purpose, operation, equipment, customer, supervision, and ownership
Michael’s Painting
Look at when businesses are continuing from the last except with union employees is animus
Joint Employer
Essential terms and conditions test - only if share or codetermine the employees’ essential terms and conditions of employment;
Lots of movement - exercises substantial and direct control over the essential terms and conditions of another
Browning-Ferris Industries
Companies are joint because they share matters essential to the terms and conditions of employment (personnel decisions, discipline, direction)
Look at if they have personnel authority and wage control
Labor Union of Pico Korea Ltd. v. Pico
Korean employees cannot enforce a collective bargaining contract against a transborder company under the LMRA
Presumption against America enforcing things extraterritorial
