Final Flashcards
What does the NLRA cover?
Enterprises “effecting commerce.”
How does denial of rights have the effect of burdening or obstructing commerce?
- Impairing the efficiency, safety, or operation of the instrumentalities of commerce;
- Occurring in the current of commerce;
- Materially affecting, restraining, or controlling the flow of raw materials…;
- Causing diminution of employment and wages in such volume as substantially to impair or disrupt the market.
What are the 5 prohibitions under Section 8?
8(a)(1): interfering with section 7 rights.
8(a)(2): dominating or interfering w/the formation or admin of a labor org.
8(a)(3): discriminate against employees to encourage or discourage support for a union.
8(a)(4): Discriminating against employees who file a charge or testify.
8(a)(5): Refusing to bargain collectively with the employee’s representative.
What does “employer” NOT mean under section 2?
- The US or any wholly owned Gov’t corp
- Any federal reserve bank
- Any state or political subdivision
- Any person subject to the Railway Labor Act
- Any labor organization (other than when acting as an employer)
What does “employee” NOT mean under section 2?
- Agricultural laborer
- Domestic service of any family or person
- An individual employed by his parent or spouse
- Independent contractors
- Individuals employed as a supervisor (management)
What is the right of control test?
Determines whether an employee or IC.
How many years is the term on NLRB? Who appoints?
5 years. Appointed by President.
What are within the NLRB’s powers?
- Conduct Elections
- To form or join a union
- To decertify an existing union
- Investigate charges of unfair labor practices
What does the NLRB GC do?
- Appointed for a 4-year term
- Independent from Board
- Responsible for investigation and prosecution of unfair labor practices cases
- Supervision of NLRB field offices
What does the NLRA do?
Changes common law right under employment at will. Legalizes unions, promotes collective action.
What is the fundamental distinction between labor law and employment law?
Employment law is about individual rights. Labor law is about group rights (which results in a loss of individual rights).
Is employment at will the same as the right to work?
No. The right to work is a statute meaning that no one is mandated to join a union.
What is the right to work?
A statute meaning that no one is mandated to join a union.
Who do collective bargaining agreements apply to?
All current employees.
What do Section 7 Rights do?
Grants employees the right to:
• Self-organization
• To form, join, or assist labor organizations
• To bargain collectively thru reps of their choosing
• To engage in concerted activities for the purpose of collective bargaining, other mutual aid, or protection
What does Sec. 8(a)(1) prohibit employers from?
Interfering with, restraining, or coercing employees in the exercise of their Sec. 7 rights. (29 USC Sec. 158(a)(1).)
Handbook states: Soliciting of any type cannot be permitted in the factory or offices. Problem?
Yes. Under Republic Aviation, illegal. Work is for work, but employees should be able to do what they want on off-hours unless there is a valid reason to ask them to leave premises.
Holding in Beth Israel Hospital?
§8(a)(1) necessarily encompasses employees’ right effectively to communicate w/one another regarding self-org at the jobsite.
Holding in Lafayette Park Hotel?
Unacceptable conduct rules in an employee handbook does not necessarily chill employee’s right to unionize.
An employee handbook reads: Being uncooperative with bosses, employees, guests and/or regulatory agencies or otherwise engaging in conduct that does not support the hotel’s goals and objectives. Chilling under Lafayette?
No. mere maintenance is OK
An employee handbook reads: Divulging Hotel-private info to employees or other persons or entities that are not authorized to receive that information. Chilling under Lafayette?
No. mere maintenance is OK
An employee handbook reads: Unlawful or improper conduct off the hotel’s premises or during non-working hours which affects the employee’s relationship with the job, fellow employees, bosses, or the hotel’s reputation or good will in the community. Chilling under Lafayette?
No. mere maintenance is OK
An employee handbook reads: Employees are not permitted to use the restaurant or cocktail lounge for entertaining friends or guests without the approval of the dept. manager. Chilling under Lafayette?
Yes. It is unlawful bc management can select which off-duty employees can use premises, which can be used to inhibit Sec. 7 activity.
An employee handbook reads: Employees are not allowed to fraternize w/hotel guests anywhere on hotel property. Chilling under Lafayette?
No. not likely to inhibit protected employee communication w/customers b/c the term “fraternize” is undefined.
An employee handbook reads: Making false, vicious, profane or malicious statements toward or concerning the hotel or any of its employees is unacceptable. Chilling under Lafayette?
Yes. “False” is too broad and can be chilling.
An employee handbook reads: Employees are required to leave the premises immediately after the completion of their shift and are not to return until the next scheduled shift. Chilling under Lafayette?
Maybe.
If a rule in an employee handbook is ambiguous, how would it be treated under Lafayette?
Any ambiguity in a rule must be construed against the employer as the promulgator of rule.
What is the rule in Martin Luther Memorial Home? (Hint: Chill test)
If a rule does not explicitly restrict activity protected by Sec. 7, then is/are:
- Employees reasonable construing the rule to prohibit Sec. 7 activity;
- The rule was made in response to Sec. 7 activity; or
- The rule has been applied to restrict Sec. 7 rights.
An employee uses abusive and profane language egregiously during a Sec. 7 activity and is fired. Can they win in a complaint?
Probably not. An employee whose Sec. 7 activity involves behavior of this type may not be protected.
An employee handbook reads: Harassment of other employees, bosses and any other individuals in any way is prohibited. Chilling?
No, without context. But ‘harassment’ is vague.
An employee handbook reads: While on duty, you must report to your immediate boss. If you are unsatisfied with your boss’s response, you may request a meeting with your boss or her boss. If you become dissatisfied with your employment, you may write the Manager in Charge or any member of management. Written complaints will be acknowledged. Do not register complaints with any rep of the client. Problem?
Explicitly restricts Sec. 7 activity.
Which case is the chain of command rule from?
Guardsmark.
An employee handbook reads: Solicitation and distribution of literature not pertaining to officially assigned duties is prohibited at all times while on duty or in uniform, and any known or suspected violated of this order is to be reported to your immediate boss. Problem?
Yes, violates Sec. 8(a)(1). The problem? “all times while…in uniform”
An employee handbook reads: While on duty you must NOT fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees. Problem?
Yes. Employees could reasonable interpret the rule to prevent them from discussing terms and conditions of employment.
Social Media Policy reads: employees may not make disparaging or defamatory comments about Echostar, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their products/services.” Problem?
Yes. “Disparaging” goes beyond proper employer prohibition and intrudes on employee Sec. 7 activities. (Echostar)
An employee handbook reads: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership. Problem?
Yes. “Courtesy” rule unlawful bc employees would reasonably construe its broad prohibition as encompassing Sec. 7 activity. (Karl Knauz)
Employment K reads: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” This includes entering into a collective bargaining agreement. Problem?
Yes. Chilly! (American Red Cross)
Sec. 7 protects employee discussions about their job performance. Does this include Facebook?
Yes. Circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management. (Hispanics United of Buffalo).
Two employees have a conversation on FB, planning a nasty prank on the boss. Boss finds out and fires them. Did they lose protected status under Sec. 7?
Yes. Planned insubordination so egregious as to lose Sec. 7 protection and rendered employee unfit for service. (Richmond District)
Two employees liked and commented on a FB post criticizing their company. They were fired for violating their Internet/Blogging Policy and claimed the speech was protected. Are the employees right to sue?
Yes. It violated their Section 7 rights. (Three D)
Violations by acts of interference:
- Coercion
2. Restraint
How can a company interfere, coerce, or restrain Section 7 rights?
Policy manuals, social media
Can an employee use company equipment (i.e., an office computer) to exercise their Sec 7 rights?
No, and the employer has basic property right to regulate and restrict use. (Register Guard) However, Purple Communications amended to say that during non-work time is OK.
Do employers need to give employees email access?
No. Purple Communications
What is the Atlantic Steel standard for protection (PWNS)?
- Place of discussion
- Subject matter
- Nature of employee outburst
- Whether provoked by unfair labor practices
Is Atlantic Steel appropriate for social media? If not, what is?
No. The Jefferson Standard.
What is the Jefferson Standard?
Disloyal disparagement not related to a labor dispute is not protected.
What does Sec. 8(c) say?
The expressing of any views as disseminated will not be evidence of unfair labor practice, if such expressions contains no threat of reprisal of force or promise of benefit.
What are Laboratory Conditions Rule?
During an election to determine representation, voting is to occur in a ‘lab’ in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of employees. (General Shoe Corp.)
Mgmt said if you unionize we’ll close down the plant. Problem?
Yes, if there’s no support for prediction, and employees believe it is coercive (Gissel Packing). Requires direct proof on an impact on election. (Crown Bolt)
Can an employer express his general views to his employees about unionism or a particular union, or make a prediction as to what will happen precisely to the company?
Yes, Sec. 8(c) doesn’t forbid that. As long as the employer is compliant with 8(a)(1), all good. (Gissel Packing)
What is NLRB’s rule on propaganda?
When a pty has used forged documents which render voters unable to recognize the propaganda, we will set the election aside. Deceptive manner over substance. Truth or Falsity doesn’t matter (Shopping Kart).
Which case held the following: “The board will not normally censor or police preelection propaganda by parties to elections, absent threats of acts of violence. Exaggerations, inaccuracies, partial truths, name-calling, and falsehoods, while not condoned, may be excused as legit propaganda.”
Sewell Manufacturing Co.
