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Labor Law > Establishing Collective Representation > Flashcards

Establishing Collective Representation Flashcards

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1
Q

3 Routes to Organization under the NLRA

A

1) NLRA certification election (9)
2) board bargaining to remedy the employer ULPs when evidence of union majority (Gissel order)
3) employer voluntary recognition (9)

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2
Q

NLRA(2)(5) - labor org. defined

A

organization of any kind which employees participate and exists for the purpose of dealing with employer regarding grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work

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3
Q

Employer Dominated Labor Organization

A

NOT ALLOWED under 8(a)(2) when it interferes with the formation/admin of any labor organization to contribute financially/support it

Employee committees can get fishy, fast

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4
Q

Electromation

A

Two fold inquiry - is this a labor organization? is it dominating?

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5
Q

Electromation - Labor Org. Elements 2(5)

A

1) employee participation
2) purpose to deal with employer
3) concern conditions of empm
4) evidence representing ees

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6
Q

Electromation - Dominated elements

A

interfere with formation, and administration. and finance

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7
Q

Crown, Cork, and Seal (2001)

A

If an employer has a committee to deal with the “managerial” functions are NOT dealing with in NLRA - thus, not a labor org.

Differnet than electromation because of WHY they were meeting

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8
Q

Employer may under 8(a)(2)

A

Suggestion box, Poll meployee, talk to committees set up by employees (WITHOUT bargaining), establish committees to not talk about terms of employment (AKA quality circles), establish committees to do management things with

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9
Q

Minority Bargaining

A

No obligation of the er to bargain with the minority union because on the “exclusive” representation in Section 9 of the NLRA

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10
Q

Int’l Ladies Garment Worker’s Union

A

Employer violated 8(a)(1) by agreeing to represent ees because it was the minority of employees, even if it was in good faith

Union violated section 8(b)(1)(A) by acceptance of exclusive bargaining power when there was no majority

ER in trouble though because they did, regardless of mistake

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11
Q

NLRA 9(A)

A

representatives designated/selected for the purposes of CB by the majority of the unit shall be the EXCLUSIVE reps of the employees

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12
Q

J.I. Case Co. v. NLRB

A

exclusive representative preclude inconsistent bargaining

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13
Q

NLRA 8(a)(5) & (d) - good faith bargaining

A

Obligation for the Union to fairly represent all employees in the unit EVEN THOSE NOT IN THE UNIT

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14
Q

Emporium Capwell Co. v. Western Addition

A

Individuals still have civil rights, but the most effective way to pursue them is under the NLRA’s CB

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15
Q

NLRA and inclusion

A

NLRB wants inclusion to ALL union members, do not want to separate identity groups because the right to organize are collective under NRLA (7) because they have the most power to bargain

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16
Q

Duty of fair representation

A

exclusive representation required to represent all members of the bargaining unit FAIRLY, whether or not they are members

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17
Q

Steele v. Louisville (black and white firemen)

A

Labor unions must act as the statutory representatives of the craft, and cannot refuse to perform without hostile discrimination, fairly, impartially, and in good faith

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18
Q

Duty to fairly represent suits - why are they weird?

A

Sue the union and the employer at the same time

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19
Q

Regulation of access imbalance

A

Republic aviation versus Lechmere

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20
Q

Republic Aviation

A

Employer property rights are subordinated by employee’s right to organize under Section 7, but employer general discrimination against solicitation on company property is a ULP under 8(a)(1)

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21
Q

Lechmere

A

No section 7 rights for employee organizers to have access to employees on company property unless remote location exception

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22
Q

New York, New York

A

Contractor employees were not employees of the property owner entitled to Section 7 rights access rights of property owenr’s own employees nor nonemployees entitled to restrictive access for nonemployee union organizations under Lechmere

Contractor’s employees were much more closely aligned with property owners own employees with those of nonemployee union organizers and their rights were close

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23
Q

Bexar County

A

Only contractor employees who REGULARLY and EXCLUSIVELY work for a contractor on a property owner’s property have Section 7 access rights

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24
Q

Cesar’s Entertainment

A

No statutory right for employees to use employer-provided email for nonwork, Section 7 purposes in the typical workplace

No right to use employer-provided equipment

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25
Q

Babcock

A

Nonemployee organizer’s right to acccess is less than employee right to access, and Section 7 may exclude them from their property

26
Q

Technology Service Solutions

A

lack of reasonable alternatives meant that there is a mandatory ask for the employer to give an email list of multi-state virtual employees if there is someone who wants to organize

27
Q

Laboratory Conditions

A

If captive audience meetings are held or speeches are given within 24 hours of a representation election, they are presumed to be tainted, and may be bound to void the results

28
Q

General Shoe Corp.

A

Laboratory conditions are the standard under the NRLA, and if this standard is NOT met, at minimum, another election can be asked to do again

29
Q

ULPs and Laboratory Conditions

A

Not necessarily exclusively violations of LCs are ULPs

30
Q

Captive audience case

A

Peerless Plywood

31
Q

Excelisor Underwear

A

For best union representation, the employer must give an eligibility list of all eligible voters within 7 days after an election is ordered

Requires email, phone, etc.

32
Q

Eligible Voters

A

all employees in the bargaining unit, economic strikers, ULP strikes, permanent replacements, probationary employees, on ick leave, salts, laid off but expect recall, part time

33
Q

Those not required to be on the Excelsior list

A

quit, discharged for cause, employees who 8(a)(3) charges for discriminatory discharge are pending

34
Q

8(C)(1)

A

expressing the views, argument, opinion, dissemination, whether in print/writing/graphic/visual form shall NOT constitute evidence of a ULP IF: contains no threat of reprisal or force or promise of benefit labor practice

35
Q

What must a statement from employer contain to violate NLRA 8(c)(1)

A

threat of reprisal/promise of benefit

36
Q

Gissel Packaging

A

Employers rights cannot outweigh the equal rights of the employees to associate freely, as those in Section 7, 8(a)(1), and proviso in 8(c)

“thin ice” comment

37
Q

Hollywood Ceramics

A

elections can be set aside if the prevailing party presents a substantial departure from the truth at a time that prevents the other side from making an effective reply

38
Q

Current Standard for Threats:

A

Shopping kart - we do not regualte the truth or falsity absent fraud/invocation of board process

39
Q

Radically inflammatory speech

A

Violates laboratory conditions

40
Q

How judge coercion

A

1) employer can state view on union
2) employer can make prediction on objective fact on probable consequences BEYOND THEIR CONTROL!

41
Q

NLRB v. Exchange parts

A

8A1 prohibits intrusive threats and promises to immediately favor ees which undertake the purpose of impinging gon their freedom of choise is calculated to coerce ees

2 floating holidays, benefits, etc because union cannot

42
Q

8C free speech vs. 8a1

A

8A1 prohibits coercion, but 8C protects speech unless there is reprisal or force or promise

43
Q

Before-hand benefits? Coercion?

A

NO - must be before though

44
Q

Remedies for coercion

A

Re-run election, NO bargaining order

45
Q

Interrogation Tactics

A

Look at:
1) Background (hostility of er)
2) nature of info sought - seeking to take indiv. action
3) identity of questioner - manager/higher up
4) truthfulness of employee

46
Q

Polling employee (Struknes)

A

Permissible if: secret ballot, determine majority, notified about ee purpose, assurance agaisnt reprisal, not coercive

47
Q

Surveillance of Employees

A

Conspicuous surveillance that causes intimidation of employees or otherwise interferes with protected activity is UNLAWFUL

48
Q

Alleghany Ludlum

A

It IS lawful to solicit employees to appear in a campaign video provided the employer meets the five requirements:

(1) general announcement
(2) not pressured
(3) no other coercive conduct
(4) not created coercive space
(5) not exceeding legit purpose of soliciting consent

49
Q

Question IS LAWFUL when:

A

If the purpose of questioning is given to employees

Assurances against reprisals

Voluntary partic.

No anti-union animus

relevant to pending lit.

No probing state of mind

No interference w/ Section 7 rights

50
Q

Case coming from when questioning is lawful

A

Johnnie’s Poultry

51
Q

NLRA 8a3

A

Employers cannot discriminate (hire, fire, tenure, condition) based on membership in labor org.

52
Q

Remedies for Discrimination 10(c)

A

Orders requiring person to cease and desist from ULP, affirmative action based on reinstatement with/without backpay

53
Q

10J

A

Injunctions from discrimination are permitted

54
Q

Union Security Agreements

A

Closed shop (agreement forcing to hire union members only is BANNED)

Union shop (becoming union as cond. of employment NOT allowed)

55
Q

NLRA 14B

A

States can pass right to work without union participation

56
Q

NLRB v. Transportation Management Corp.

A

Violations of 8A1 and 8A3 must be proved by a preponderance of the evidence that the discharge rested on the employees unprotected conduct (employment discrimination burden shift)

57
Q

What is it called when er is rebutting a discrimination claim?

A

Affirmative defense

58
Q

Town and Country (discrimination)

A

Violation to refuse and consider for interview employees because there was substantial evidence

59
Q

Textile Workers v. Darlington

A

Complete liquidation of the business is NOT like an economic lockout and that is a violation as the partial closing/runaway should would force ees not to organize

60
Q
A

Labor Law (6 decks)

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