Final Flashcards
(133 cards)
1
Q
What does the NLRA cover?
A
Enterprises “effecting commerce.”
2
Q
How does denial of rights have the effect of burdening or obstructing commerce?
A
- 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.
3
Q
What are the 5 prohibitions under Section 8?
A
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.
4
Q
What does “employer” NOT mean under section 2?
A
- 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)
5
Q
What does “employee” NOT mean under section 2?
A
- 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)
6
Q
What is the right of control test?
A
Determines whether an employee or IC.
7
Q
How many years is the term on NLRB? Who appoints?
A
5 years. Appointed by President.
8
Q
What are within the NLRB’s powers?
A
- Conduct Elections
- To form or join a union
- To decertify an existing union
- Investigate charges of unfair labor practices
9
Q
What does the NLRB GC do?
A
- Appointed for a 4-year term
- Independent from Board
- Responsible for investigation and prosecution of unfair labor practices cases
- Supervision of NLRB field offices
10
Q
What does the NLRA do?
A
Changes common law right under employment at will. Legalizes unions, promotes collective action.
11
Q
What is the fundamental distinction between labor law and employment law?
A
Employment law is about individual rights. Labor law is about group rights (which results in a loss of individual rights).
12
Q
Is employment at will the same as the right to work?
A
No. The right to work is a statute meaning that no one is mandated to join a union.
13
Q
What is the right to work?
A
A statute meaning that no one is mandated to join a union.
14
Q
Who do collective bargaining agreements apply to?
A
All current employees.
15
Q
What do Section 7 Rights do?
A
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
16
Q
What does Sec. 8(a)(1) prohibit employers from?
A
Interfering with, restraining, or coercing employees in the exercise of their Sec. 7 rights. (29 USC Sec. 158(a)(1).)
17
Q
Handbook states: Soliciting of any type cannot be permitted in the factory or offices. Problem?
A
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.
18
Q
Holding in Beth Israel Hospital?
A
§8(a)(1) necessarily encompasses employees’ right effectively to communicate w/one another regarding self-org at the jobsite.
19
Q
Holding in Lafayette Park Hotel?
A
Unacceptable conduct rules in an employee handbook does not necessarily chill employee’s right to unionize.
20
Q
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?
A
No. mere maintenance is OK
21
Q
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?
A
No. mere maintenance is OK
22
Q
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?
A
No. mere maintenance is OK
23
Q
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?
A
Yes. It is unlawful bc management can select which off-duty employees can use premises, which can be used to inhibit Sec. 7 activity.
24
Q
An employee handbook reads: Employees are not allowed to fraternize w/hotel guests anywhere on hotel property. Chilling under Lafayette?
A
No. not likely to inhibit protected employee communication w/customers b/c the term “fraternize” is undefined.
25
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.
26
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.
27
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.
28
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:
1. Employees reasonable construing the rule to prohibit Sec. 7 activity;
2. The rule was made in response to Sec. 7 activity; or
3. The rule has been applied to restrict Sec. 7 rights.
29
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.
30
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.
31
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.
32
Which case is the chain of command rule from?
Guardsmark.
33
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”
34
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.
35
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)
36
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)
37
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)
38
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).
39
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)
40
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)
41
Violations by acts of interference:
1. Coercion
| 2. Restraint
42
How can a company interfere, coerce, or restrain Section 7 rights?
Policy manuals, social media
43
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.
44
Do employers need to give employees email access?
No. Purple Communications
45
What is the Atlantic Steel standard for protection (PWNS)?
* Place of discussion
* Subject matter
* Nature of employee outburst
* Whether provoked by unfair labor practices
46
Is Atlantic Steel appropriate for social media? If not, what is?
No. The Jefferson Standard.
47
What is the Jefferson Standard?
Disloyal disparagement not related to a labor dispute is not protected.
48
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.
49
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.)
50
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)
51
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)
52
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).
53
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.
54
Can election propaganda include racial prejudice?
No. (Sewell Mfg. Co.)
55
Polling 8(a)(1) test (SNAPP):
* Secret ballot
* No unfair labor practices
* Assurance against reprisal
* Purpose communicated to employees
* Purpose is to determine truthfulness of union claim of majority support
56
A “fist in velvet glove,” or a promise of benefits, Does this violate 8(a)(1)?
Yes. (Exchange Parts Co.)
57
What does Sec. (8)(b)(1) cover?
Union Misconduct. No restraint or coercion on employees in exercising their rights or employers in selection of his reps for the purposes of collective bargaining or adjustment of grievances.
58
What does Sec (8)(a)(2) cover?
Domination - Unfair Labor Practice.
59
What is the Labor Org Test (DOER)?
* Dealings concern conditions of work
* Org exists for the purpose of “dealing with” employer
* Employees participate
* Represents employees
60
Sec 8(a)(2) Domination test (OSEA)
* Organization created by employer
* Structure and function determined by employer
* Existence depends on employer
* Anti-union motivation not required
61
An employer grants exclusive recognition to a minority union. Problem?
Violates Sec. 8(a)(2) – unlawful support. No scienter needed. (Int’l Ladies’ Garment Workers)
62
An employer recognized and entered into a contract with one union after another presented its majority support and filed a petition with the NLRB. Problem?
Yes, violates 8(a)(2) – unfair labor. (Midwest Piping)
63
An employer with an established bargaining relationship faces demand from a rival org. What can the employer do?
Continue to deal with the incumbent, even though an election petition has been filed by a rival. (RCA Del Caribe)
64
What does Sec 8(a)(3) cover?
Discrimination in regard to hiring / tenure of employment or perks in encouraging or discouraging membership in a labor organization. Case by case basis.
65
Which case states the following: NLRB GC must prove discharge based, at least in part, on protected activity.
Transportation Management Corp.
66
Absent a showing of anti-union motivation, an employer can fire an employee for good reason, bad reason, or no reason at all. What rule allows this?
Sec. 8(a)(3). (Mueller Brass Co.)
67
What is the standard of review for a Sec. 8(a)(3) discrimination claim?
NLRB’s findings must be supported by substantial evidence on the record considered as a whole.
68
An employer fires employees based on union wage scales. Employees claim Sec. 8(a)(3) violation. Will they prevail?
No. Sec. 8(a)(3) covers discrimination, which is based on union membership, not union wage scales. (Adkins Transfer)
69
An employer closes his entire business, and his employees claim Sec. 8(a)(3) violation saying there’s proof that he did it out of vindictiveness towards the union. Unfair labor practice?
No. Doesn’t matter what his intent was to close. However, if planning to open same kind of business after, is a violation b/c future employees will be afraid. (Textile Workers Union)
70
Employees decide to quit en masse to ruin their employer. Violation?
No. Even if they are prohibited from engaging in a strike, they can quit regardless of intent. (Darlington Mfg.)
71
What are the remedies for Unfair Labor Practices?
* Can issue C&D orders, reinstatements of employment w/or w/out backpay. (Sec. 10(c)).
* An injunction (Sec. 10(j)).
72
What is the standard for a 10(j) injunction?
* Strong showing that petitioner is likely to prevail
* W/out such relief, petitioner will suffer irreparable injury
* Would injunction harm other interested parties?
* Public interest (Blackwelder)
73
What is the election process?
1. Petition for election filed (need more than 30% interest from employees)
2. Regional Staff investigates (are union and employer covered by NLRB?)
3. If contested, Regional Office conducts hearing, and Regional Director makes final decision.
4. Regional Director issues Direction of Election, about 6 weeks after petition filed.
74
In order to file a petition for an election, what % of employees must show interest?
30%
75
The regional director’s decision re: election process is subject to review by whom?
NLRB.
76
What does Sec 9 cover?
Representatives and Elections, in bargaining for rates of pay, wages, hours, or other conditions.
77
What is an appropriate bargaining unit?
* A unit composed of certain jobs or job classifications; not persons.
* Appropriate bargaining unit = appropriate election unit
78
Section 9(a)
Reps designated or selected for collective bargaining are exclusive reps. Note, does not require an election.
79
Who creates an appropriate bargaining unit. Must it be optimal?
NLRB, and no.
80
What is the unit determination standard?
* Employees share a “community of interest”
| * Weigh all relevant factors on a case-by-case basis
81
What are the relevant factors in the unit determination standard?
* Compensation, hours of work, benefits, supervision, training, skills
* Contact with other employees is infrequent
* Work functions not integrated with other employees
* Historically have been a distinct bargaining unit (Blue Man Vegas)
82
Does the extent to which the employees have organized have an impact on how they are formed as a bargaining unit?
No. Sec. 9(c)(5).
83
When can a bargaining unit withdraw?
* Prior to date set for negotiations of a contract
| * Once negotiations begin, only if there is “mutual consent” or “unusual circumstances”
84
What does “unusual circumstances” NOT mean when a bargaining unit is deciding whether to withdraw?
* Impasse in negotiations is not sufficient
| * Interim agreement entered into w/other employers not sufficient
85
What does Sec. 10(f) do?
Provides for judicial review if “aggrieved by a final order.” Decisions in representations proceedings not a final order.
86
The board approved a bargaining unit containing both professional and nonprofessional employees. Is this a problem?
Yes. It exceeds authority under Sec. 9(b)(1).
87
Which statute says the following: The Board will not decide a unit of professional and nonprofessional employees is appropriate unless a majority of such professional employees vote for inclusion in such unit.
Sec. 9(b)(1)
88
What does “professional employee” mean?
Any employee engaged in work
• Mainly intellectual and varied as opposed to routine mental, manual, physical work
• Involves consistent exercise of discretion and judgment
• Whose Outputs cannot be standardized
• Requiring advanced knowledge
89
What is a district court’s standard for reviewing the Board’s bargaining unit determination?
Arbitrary, unreasonable, or an abuse of discretion. Deferential to board b/c they have wide discretion.
90
What does Sec. 8(a)(5) do?
Requires the employer to bargain collectivity in good faith with the union.
91
Can the duty to bargain arise w/out a board election?
Yes. (Gissel Packing)
92
An employer rejected card majority and committed independent unfair labor practices which made a fair election unlikely (and was ultimately cast aside). What remedy is there for the employees?
Have a court issue a bargaining order. (Gissel Packing)
93
If a representative is recognized without the board’s certification, will she have protections under the Act?
No.
94
How soon can a new election be held after just doing one?
12 months. Sec 9(c)(3).
95
If a card is ambiguous, can it be counted for elections?
No, unless employee told it would be only for elections, and not a dual-purpose vague card.
96
Can an employer refuse to recognize a union holding authorization cards representing a majority?
Yes, unless employer engaged in an unfair labor practice. Union has the burden of taking the next step in the Board’s election process.
97
One week after an election, 9 of 13 employees repudiated their union. Can the employer refuse to bargain?
No. the union has an unrebuttable presumption of representation for one year.
98
What is the Voluntary Recognition rule?
When an employer gives voluntary recognition of a majority representative, the parties must be afforded a reasonable time to bargain and to execute the contracts resulting from such bargaining.
99
An employer believes that the incumbent union no longer has the support of a majority of its employees. Which of the following is the best response? A) Request a formal, board-supervised election. B) W/draw recognition and refuse to bargain. Or C) Conduct an internal poll of employee support for the union.
A. B is an unfair labor practice and the nuances of C can be challenged as unfair labor practice.
100
Can individual employment contracts delay a collective bargaining agreement?
No. (J.I. Case Co.)
101
Can employees attempt to bargain with the company separately?
No. (Emporium Capwell)
102
What are the union members’ bill of rights (SPEFV)?
* Equal rights to participate in union activities
* Freedom of speech and assembly
* Voice in setting rates of dues, fees and assessments
* Protection of the right to sue
* Safeguard against improper discipline
103
Which NLRA statute supports an employee’s right not to join a union?
Sec 8(a)(3).
104
When a labor organization is chosen to be the rep of the craft or class of employees, does it represent even those that want them to represent them?
Yes. The must rep non-union or minority union members without hostile discrimination, fairly, impartially, and in good faith (Steele).
105
Which statute covers the duty to collectively bargain?
Sec 8(d). A refusal to do what reasonable and fair-minded men are usually willing to do, upon request, may be taken to be an indication of a lack of proper intent and good faith.
106
What are some examples of bad faith?
* Dilatory tactics
* Refusal to meet
* Demanding a short-term contract
* Failure to agree to dues check off clause
107
What subjects does the duty to bargain in good faith (Sec. 8(d)) cover?
• Wages, hours and terms and conditions of employment.
108
What is the remedy for when parties fail to bargain in good faith?
The board can order the parties to go back to the table, but they can’t compel parties to come to an agreement.
109
Is there a duty to disclose information when bargaining in good faith?
Yes. But will not apply in every case for wages, or when there is confidential information involved.
110
What economic pressures can the union put on the employer (4RLD)?
* Refusal to solicit new business
* Refusal to comply with reporting procedures
* Reporting late to work
* Refusal to perform customary duties
* Leaving work early
* Distributing leaflets to customers
111
An employer decides to unilaterally change some conditions of the employment under negotiation. Problem?
Violates 8(a)(5) – it is circumvention of good faith bargaining.
112
What happens during a collective bargaining negotiation?
* Either pty to may lawfully insist to the point of impasse upon any provision related to a “mandatory subject of bargaining.”
* When ptys reach an impasse, either side may resort to economic warfare (strike, lockout).
* The employer’s duty to maintain status quo ends.
* The employer may make unilateral changes that are reasonable.
113
Do promotions, discipline, and work scheduling have to be negotiated in the collective bargaining?
No. that is a mgmt responsibility and is excluded from arbitration. A pty may not insist on subjects that neither pty is obligated to yield. (American Nat’l Ins. Co.)
114
What is the Ballot clause from Borg-Warner?
Calls for an “advisory vote” from employees prior to striking. Illegal. Employer has to deal with representative.
115
What is the Recognition clause from Borg-Warner?
Allows a voluntary addition to collective bargaining, and may exclude the certified rep. Voluntary additions are OK, exclusion of cert rep is not.
116
What are the 3 categories of bargaining subjects?
* Mandatory
* Permissive
* Illegal
117
When is a bargaining subject mandatory?
When it is germane to the work environment.
118
What is the balancing test when deciding whether a bargaining subject is mandatory?
Mgmt decisions that have a substantial impact on the continued availability of employment should be required only if the benefit outweighs the burden placed on the conduct of business.
119
What is the NLRB’s test for determining whether relocation of operations is mandatory to bargain?
* Prima facia showing – no basic change in operations
* Subjective – labor costs were a factor
* Futility – in bargaining
120
What are the exceptions to the mandatory bargaining for relocation test?
1. A basic change in the nature of the employer’s operation
2. A change in the scope and direction of the enterprise
3. Situations in which “the work performed at the new location is significantly different”
4. Situations in which “the work performed at the former plan is to be discontinued”
121
An employer decides to unilaterally modify retiree benefits. Did the employer violate Sec. 8(a)(5)?
No. not subject to mandatory bargaining b/c retiree is not an “employee” under Section 2(3).
122
Can the NLRB grant punitive relief under 8(a)(5)?
No.
123
Pre-Strike/Lockout Notice
1. 60 day written notice
2. Schedule a meeting to negotiate renewal
3. Notify Federal Mediation and Conciliation Service w/in 30 days after notice of the existence of a dispute
4. Continue K in full force and effect until after 60 days after expiration (grace period)
124
What is the Interboro Doctrine?
An individual’s assertion of a right grounded in a collective bargaining agreement that is recognized as collective activity.
125
What is the Weingarten right?
Employee has the right to have a union representative present during a company’s internal investigation.
126
Does the Weingarten apply to non-union employees?
No.
127
What is the mutual aid or protection clause?
An employee’s activity is protected when it relates to the interests of employees qua employees.
128
An employee reported to a state agency about the conditions of nursing home residents. Does the mutual aid or protection clause help him?
No. Concerns for patients/customers not encompassed by the clause.
129
Which statutes says “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to her of any backpay, if such individual was suspended or discharged for cause”?
Sec 10(c)
130
What is a “Labor Dispute” under Sec. 2(9)?
Any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
131
What is the definition of an Employee under Sec. 2(3)?
The term “employee” shall include any employee and 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 has not obtained any other regular and substantially equivalent employment, . . .
132
What is an “inherently destructive” act and what does it do?
* Harms the collective bargaining process
* Interferes with the right to strike
* Taken based upon union status
* Establishes a barrier to future collective bargaining
133
What does Section 3 do?
Forms the NLRB, # of board ppl, terms.
