Establishing Collective Representation Flashcards
3 Routes to Organization under the NLRA
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)
NLRA(2)(5) - labor org. defined
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
Employer Dominated Labor Organization
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
Electromation
Two fold inquiry - is this a labor organization? is it dominating?
Electromation - Labor Org. Elements 2(5)
1) employee participation
2) purpose to deal with employer
3) concern conditions of empm
4) evidence representing ees
Electromation - Dominated elements
interfere with formation, and administration. and finance
Crown, Cork, and Seal (2001)
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
Employer may under 8(a)(2)
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
Minority Bargaining
No obligation of the er to bargain with the minority union because on the “exclusive” representation in Section 9 of the NLRA
Int’l Ladies Garment Worker’s Union
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
NLRA 9(A)
representatives designated/selected for the purposes of CB by the majority of the unit shall be the EXCLUSIVE reps of the employees
J.I. Case Co. v. NLRB
exclusive representative preclude inconsistent bargaining
NLRA 8(a)(5) & (d) - good faith bargaining
Obligation for the Union to fairly represent all employees in the unit EVEN THOSE NOT IN THE UNIT
Emporium Capwell Co. v. Western Addition
Individuals still have civil rights, but the most effective way to pursue them is under the NLRA’s CB
NLRA and inclusion
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
Duty of fair representation
exclusive representation required to represent all members of the bargaining unit FAIRLY, whether or not they are members
Steele v. Louisville (black and white firemen)
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
Duty to fairly represent suits - why are they weird?
Sue the union and the employer at the same time
Regulation of access imbalance
Republic aviation versus Lechmere
Republic Aviation
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)
Lechmere
No section 7 rights for employee organizers to have access to employees on company property unless remote location exception
New York, New York
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
Bexar County
Only contractor employees who REGULARLY and EXCLUSIVELY work for a contractor on a property owner’s property have Section 7 access rights
Cesar’s Entertainment
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
Babcock
Nonemployee organizer’s right to acccess is less than employee right to access, and Section 7 may exclude them from their property
Technology Service Solutions
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
Laboratory Conditions
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
General Shoe Corp.
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
ULPs and Laboratory Conditions
Not necessarily exclusively violations of LCs are ULPs
Captive audience case
Peerless Plywood
Excelisor Underwear
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.
Eligible Voters
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
Those not required to be on the Excelsior list
quit, discharged for cause, employees who 8(a)(3) charges for discriminatory discharge are pending
8(C)(1)
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
What must a statement from employer contain to violate NLRA 8(c)(1)
threat of reprisal/promise of benefit
Gissel Packaging
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
Hollywood Ceramics
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
Current Standard for Threats:
Shopping kart - we do not regualte the truth or falsity absent fraud/invocation of board process
Radically inflammatory speech
Violates laboratory conditions
How judge coercion
1) employer can state view on union
2) employer can make prediction on objective fact on probable consequences BEYOND THEIR CONTROL!
NLRB v. Exchange parts
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
8C free speech vs. 8a1
8A1 prohibits coercion, but 8C protects speech unless there is reprisal or force or promise
Before-hand benefits? Coercion?
NO - must be before though
Remedies for coercion
Re-run election, NO bargaining order
Interrogation Tactics
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
Polling employee (Struknes)
Permissible if: secret ballot, determine majority, notified about ee purpose, assurance agaisnt reprisal, not coercive
Surveillance of Employees
Conspicuous surveillance that causes intimidation of employees or otherwise interferes with protected activity is UNLAWFUL
Alleghany Ludlum
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
Question IS LAWFUL when:
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
Case coming from when questioning is lawful
Johnnie’s Poultry
NLRA 8a3
Employers cannot discriminate (hire, fire, tenure, condition) based on membership in labor org.
Remedies for Discrimination 10(c)
Orders requiring person to cease and desist from ULP, affirmative action based on reinstatement with/without backpay
10J
Injunctions from discrimination are permitted
Union Security Agreements
Closed shop (agreement forcing to hire union members only is BANNED)
Union shop (becoming union as cond. of employment NOT allowed)
NLRA 14B
States can pass right to work without union participation
NLRB v. Transportation Management Corp.
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)
What is it called when er is rebutting a discrimination claim?
Affirmative defense
Town and Country (discrimination)
Violation to refuse and consider for interview employees because there was substantial evidence
Textile Workers v. Darlington
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
