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Labor Law > Labor Law Basics > Flashcards

Labor Law Basics Flashcards

1
Q

What are the relevant sources of labor law for the private sector for purposes of our class?

A

National Labor Relations Act (NLRA). 29 U.S.C. §§ 151-69

Labor Management Relations Act (LMRA) AKA “Taft-Hartley). 29 U.S.C. §§ 141-97

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2
Q

What is the relevant source of labor law for the public sector for purposes of our class?

A

Public Employee Collective Bargaining Act (PECBA). ORS 243.650 through ORS 243.809.

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3
Q

What is the Exclusivity Principal?

A

When a union is recognized or certified as the “exclusive representative” for a group of employees, the employer is legally required to deal with those employees through the union by engaging in good faith negotiations over wages, hours, and working conditions.

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4
Q

What does the obligation to bargain in good faith mean?

A

It is an affirmative obligation to bargain over wages, hours, and working conditions and it precludes unilateral changes (e.g., changes that were not bargained for) in working conditions in most circumstances.

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5
Q

What is a public employee?

A

A person who is an employee of a public sector entity (e.g., a government entity).

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6
Q

What is a managerial employee?

A

A managerial employee is someone who formulates, determines, and effectuates management policies by expressing and making operative decisions of its employer.

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7
Q

What is a supervisory employee?

A

Under section 2(11) of the Labor Management Relations Act, supervisors include individuals “having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

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8
Q

What is a confidential employee?

A

A confidential employee is an employee who has access to various confidential materials such as labor relations, financial, business, and personnel information is not necessarily excluded from being part of a bargaining unit.

This is determined by a Three-Part Test.

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9
Q

What is the Three-Part Test for Confidential Employees?

A

(1) Does the purportedly confidential employee provide assistance to an individual who actually formulates, determines, and effectuates management policies in the area of collective bargaining?

(2) Does the assistance relate to collective bargaining negotiations and administration of a collective bargaining agreement?

(3) Is it reasonably necessary for the employee to be designated as confidential in order to provide protection against premature disclosure of management’s collective bargaining policies, proposals, and strategies?

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10
Q

What is an agricultural employee?

A

An agricultural employee is a farm worker.

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11
Q

What is an independent contractor?

A

Gigworkers or other people who are working on a 1099 basis (he will likely make it clear if the person is an independent contractor).

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12
Q

Who is an inmate?

A

An inmate is anyone incarcerated.

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13
Q

Who is an elected official?

A

An elected official who holds an elected position (e.g., Mayor, Sheriff, District Attorney, etc.)

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14
Q

Who is a federal worker?

A

A person who works for the Federal Government in some capacity.

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15
Q

What is a Bargaining Unit?

A

A Bargaining Unit is a group of employees who bargain together with their employer through a labor organization (or who are represented by a specific union).

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16
Q

What is Organizing?

A

Organizing is when a group of employees make efforts to create a new union or to expand their union.

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17
Q

What is a Captive Audience Meeting?

A

Captive Audience Meetings are mandatory meetings held by the employer, usually to give anti-union talking points.

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18
Q

What is a Representation Petition?

A

A Representation Petition is a form used by the NLRB or ERB to initiate the process of forming a new union.

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19
Q

What is Voluntary Recognition?

A

Voluntary Recognition is when an employer agrees to recognize the union without an election or a petition filed with the agency.

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20
Q

What is a Showing of Interest?

A

A Showing of Interest is when there is proof that employees want to be represented or change their representation status (cards or petition).

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21
Q

What is Card Check?

A

Card Check is an alternative to an election that only exists in the Public Sector.

It’s when a certain threshold of Union Cards can be presented to bypass the need for an election.

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22
Q

What are the methods by which a union can be formed?

A

(1) Election conducted by the NLRB, ERB, or other agency after filing of a representation petition.

(2) Voluntary recognition by employer.

(3) Bargaining order in response to employer conduct if there is enough showing of interest to establish majority.

(4) If in Oregon and in the Public Sector: Card Check.

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23
Q

What are the types of Organizing?

A

(1) Internal

(2) External

(A) Top-Down

(B) Bottom-Up

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24
Q

Who are the Organizers?

A

(1) Employees seeking to be organized

(2) Non-Employee Organizers

(3) Salts

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25
Q

What are Salts?

A

Salts are people who get hired at places for the sole purpose of organizing the workplace into a union.

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26
Q

What is required for a Bargaining Unit to be an Appropriate Bargaining Unit?

A

(1) Employees must have similar wages, hours, working conditions, and community of interests enough to bargain together.

(2) No prohibited employees (e.g., supervisors or confidential employees).

(3) Must have a rational basis for determining who is included and who isn’t (e.g., you can’t gerrymander the Union Representation).

(4) Ideally only professional or non-professional, but this is flexible.

(5) Preference is given towards the largest possible unit.

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27
Q

How many Union Cards do you need signed to trigger an election?

A

At least 30%.

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28
Q

Why should you shoot for more (ideally 70% or more)?

A

Because a lot of people will change their minds in between the process of signing a Union Card and the actual election process.

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29
Q

What are frequent causes of objection when it comes to unit certification?

A

The most frequent target of objections is the Bargaining Unit not being the ideal bargaining unit, however these objections are futile.

The Board must find that the bargaining unit is AN appropriate bargaining unit, not THE appropriate bargaining unit. This means that there could be multiple permutations of varying effectiveness that could be appropriate.

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30
Q

What are Unit Clarifications?

A

Unit Clarifications are filings by employers or unions to add, remove, or transfer employees in and/or out of bargaining units.

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31
Q

What are some other reasons to use a Unit Clarification?

A

(1) Unit Clarifications can also be used to decide disputes over whether someone should be in or out of the unit for various reasons (e.g., supervisory or confidential status, should be included in a different unit with a stronger community interest, etc.)

(2) Merging multiple bargaining units into a single bargaining unit

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32
Q

Are Unit Clarifications subject to Contract Bars or Certification/Election Bars?

A

Some, but not all, are subject to these bars.

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33
Q

What are some factors for determining if a bargaining unit is an appropriate bargaining unit?

A

(1) Similarity of pay and methods for computing pay

(2) Similarity of benefits (leave, insurance, etc.)

(3) Similarity of hours worked

(4) Similarity of kind of work performed

(5) Qualification, skills, and training

(6) Physical proximity and frequency of contact and transfers

(7) Functional integration of the employer’s operations

(8) Promotional ladders

(9) Shared supervision

(10) Employer’s organizational structure regarding HR

(11) Bargaining history, if any

(12) Employee wishes

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34
Q

Does the Duty to Bargain in Good Faith require compromising?

A

No, but it does require working towards a deal.

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35
Q

When does the Duty to Bargain in Good Faith Arise?

A

(1) Upon initial certification/recognition of the union – bargain “first contract”

(2) Upon expiration of existing contracts (“successor negotiations”)

(3) During life of contract where new issue arises

(4) When part of the contract is void for legal reasons or becomes impossible

(5) Exchanging information for bargaining or relevant to potential grievances

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36
Q

What are some of the results of bargaining?

A

(1) Collective Bargaining Agreement

(2) Memorandum of Understanding or Agreement

(3) Settlement Agreement

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37
Q

What are the three categories of bargaining subjects?

A

(1) Mandatory

(2) Permissive

(3) Prohibited

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38
Q

What does it mean for a topic to be a mandatory subject of bargaining?

A

Mandatory subjects must be bargained over.

39
Q

What does it mean for a topic to be a permissive subject of bargaining?

A

Permissive subjects may be bargained over, but are not required to be bargained over.

40
Q

What does it mean for a topic to be a prohibited subject of bargaining?

A

Prohibited subjects may not be bargained over, even if both sides would like to bargain over them.

41
Q

What are some examples of Mandatory Subjects of Bargaining?

A

(1) Wages

(2) Hours

(3) Benefits

(4) Job Security/Disciplinary Standards

(5) Grievance Procedures

(6) Working Conditions*

42
Q

What are some examples of Permissive Subjects of Bargaining?

A

(1) Assignment of work

(2) Core business decisions

(3) Minimum qualifications

43
Q

What are some examples of Prohibited Subjects of Bargaining?

A

Anything prohibited by law (e.g., bargaining for discriminatory hiring).

44
Q

Can parties engage in self-help (e.g., strikes, lockouts, or interest arbitration) over Mandatory Subjects of Bargaining?

A

Yes, parties can engage in self-help over Mandatory Subjects of Bargaining.

45
Q

Can parties engage in self-help (e.g., strikes, lockouts, or interest arbitration) over Permissive Subjects of Bargaining?

A

No, parties cannot engage in self-help over Permissive Subjects of Bargaining.

46
Q

Can parties engage in self-help (e.g., strikes, lockouts, or interest arbitration) over Prohibited Subjects of Bargaining?

A

No, if you can’t even engage in bargaining over Prohibited Subjects of Bargaining, you certainly can’t strike, enact lockouts, or go to interest arbitration over them.

47
Q

What if a Permissive Subject of Bargaining has an impact on a Mandatory Subject of Bargaining?

A

If a Permissive Subject of Bargaining has an impact on a Mandatory Subject of Bargaining, then the impact it has may need to be bargained over.

48
Q

When might a Permissive Subject of Bargaining have an impact on a Mandatory Subject of Bargaining?

A

Assume that we are bargaining over the amount of staffing for a location where X amount of widgets needs to be assembled each day before employees can go home.

The staffing levels may be permissive, but they’ll have an impact on a mandatory subject (hours) because employees may have to stay late to complete the day’s quota if an insufficient number of people are hired.

Therefore, while the employer does not have to bargain over the staffing levels, they do have to bargain over whether employees will be required to stay late to meet quotas.

49
Q

What is the difference between Decision and Impact Bargaining?

A

Decision Bargaining is bargaining over what decision to make.

Impact Bargaining is bargaining over the impact of choices that the employer can make as a result of Decision Bargaining or unilaterally (e.g., topics that are just permissive and not mandatory).

50
Q

What are some examples of Decision Bargaining?

A

(1) Whether to offer health insurance at all and what benefits to offer (Mandatory Subject of Bargaining)

(2) Whether to install electronic surveillance tools (Mandatory Subject of Bargaining)

(3) Whether to make college degrees a minimum requirement of the job (might be Permissive Subject of Bargaining)

51
Q

What are some examples of Impact Bargaining?

A

(1) The choice of carrier may be a Permissive Subject of Bargaining, but the impacts on employee access to providers, increases in costs, or limitations on benefits flowing from the decision would be a Mandatory Subject of Bargaining.

(2) How surveillance tools can be used and not used, notice of use, etc. would be a Mandatory Subject of Bargaining.

(3) Impacts of degree requirements, like grandfathering current employees, giving them time and resources to get degree, and compensation for education requirements would be a Mandatory Subject of Bargaining.

52
Q

How can you tell if the impact of a decision is a Mandatory Subject of Bargaining?

A

Does it affect one of the Mandatory Subjects of Bargaining (e.g., Wages, Hours, etc.)?

If so, then the Impact must be bargained over.

53
Q

What is considered Wages and Monetary Benefits (a Mandatory Subject of Bargaining)?

A

Anything that has a dollar value to the employee attached to it.

54
Q

What are some examples of Wages and Monetary Benefits (a Mandatory Subject of Bargaining)?

A

(1) Base wage or salary

(A) Premium Pay (e.g., Hazard Pay)

(B) Differential Pay (e.g., Lead Workers)

(2) Overtime (beyond the legal requirements (e.g., FLSA))

(3) Health Insurance

(4) Merit Pay

(5) Sick Leave

(6) Vacations and Holidays

(7) Pensions

(8) Incentive Pays

(9) Loan Reimbursement/Education Benefits

55
Q

What are Hours (a Mandatory Subject of Bargaining)?

A

The number of hours worked in a day or week.

56
Q

What are Hours (a Mandatory Subject of Bargaining) not?

A

(1) The starting time

(2) The number of shifts per week

(3) The number of days the business is open per week

(4) The time that services are offered

57
Q

What are Working Conditions (a Mandatory Subject of Bargaining)?

A

(1) Drug, alcohol, and physical testing of existing employees

(A) Applicants are not covered by the CBA and thus anything pertaining to them is Permissive.

(2) Grievance and Arbitration Procedures

(3) Discipline Standards

(4) No-strike and no-lockout clauses

(5) Layoffs that are motivated by labor costs rather than necessitated by business needs

(6) Recall rights

(7) Changes in working conditions for strikers returning to work

(8) Logistics of negotiating process

(9) Safety

(10) Seniority

(11) Smoking rules and restrictions

(12) Strike settlement agreements

(13) Surveillance cameras in the workplace

(14) Union security and check off clauses

(15) Waiver of bargaining or zipper clauses

(16) Work assignments and workload

(17) Work Rules

(18) Non-discrimination provisions

(19) Duration of CBA

(20) Other Subjects*

58
Q

When are Working Conditions a Mandatory Subject of Bargaining?

A

For a certain working condition to be a Mandatory Subject of Bargaining, the effect on the Employees must be greater than the effect on Management.

59
Q

What is Interim Bargaining?

A

Interim Bargaining (or Midterm Bargaining) is Bargaining required during the life of an existing CBA.

60
Q

What are two situations in which Interim Bargaining may be required?

A

(1) When the Employer wants to change the status quo on a Mandatory Subject of Bargaining

(A) This is the most frequent occurrence

(2) When external forces change Mandatory Subjects of Bargaining (e.g., legal changes, safety issues, insurance companies, etc.).

61
Q

What is the Continuing Obligation to Bargain?

A

The Duty to Bargain in Good Faith lasts as long as there is an organization representing the employees.

This means it last during the Bargaining Period, during the CBA, and even after the CBA expires (during the “status quo” period).

62
Q

What if someone makes a Unilateral Change despite the Duty to Bargain in Good Faith?

A

Violation of the Duty to Bargain in Good Faith is a per se violation (NLRB v. Katz).

63
Q

What are the elements of a Unilateral Change?

A

(1) Change to status quo

(2) Involving or impacting Mandatory Subject of Bargaining

(3) Without bargaining first

64
Q

Are there any Valid Employer Defenses to a Unilateral Change?

A

No, there are no Valid Employer Defenses to a Unilateral Change (at least not that we’ve covered in class).

65
Q

How do you determine what the Status Quo is after a CBA expires?

A

(1) Expired agreements (e.g., CBAs, MOUs, etc.)

(2) Policies, Rules, or Procedures

(3) Pattern of Conduct

66
Q

How do you determine if a subject is a Mandatory Subject of Bargaining or if it has Mandatory Impacts?

A

Step 1. Subject-based Analysis

Step 2. Identify the Subject or Subjects at issue

Step 3. Evaluate whether it is specifically covered by statute defining Mandatory or Permissive Subjects of Bargaining

Step 4. Look at Case Law if it’s not expressly defined in the statute

Step 5. If Case Law doesn’t have an answer, do the Balancing Test

67
Q

What is Surface Bargaining?

A

Surface Bargaining is where a party “goes through the motions” of bargaining with no intention of reaching an agreement.

68
Q

How do you determine if someone is engaging in Surface Bargaining?

A

The Board (whether NLRB or ERB) will look at the “totality of the circumstances” to determine if there is Surface Bargaining.

69
Q

What are some factors that the Board may look at when looking at the Totality of the Circumstances for Surface Bargaining?

A

(1) Dilatory Tactics

(2) The Content of Proposals Made

(3) The Behavior of the Spokesperson

(4) Concessions or Counter-Proposals

(5) Failure to Explain or Reveal Positions

(6) The Overall Course of Bargaining

70
Q

What are some Employer Defenses to the Continuing Obligation to Bargain

A

(1) The Subject is not Mandatory.

(A) Management never has to bargain over Permissive Subjects of Bargaining, but be aware of Mandatory Impacts arising out of Permissive Subjects of Bargaining.

(2) Union waived right (in the CBA or through inaction)

(3) Management has already completed its Duty to Bargain over the employment condition.

(A) Example: Management decision to layoff results in Bumping, but the Bumping rules have already been bargained over and thus there is no need to bargain over them again.

71
Q

How do you show a Waiver of a Right?

A

(1) Express Contract Language

(A) ZIpper/Entire Agreement Clauses: Parties agreement is limited to what is in the CBA and all other agreements are repudiated. Depending on the text, this can meet the waiver standard (clear and unmistakable).

(2) Extrinsic Evidence of Bargaining History

(A) If the issue has already been bargained over, even if it came to an unfavorable outcome

(3) Inaction of a party/past practice without bargainin

72
Q

What is an Unfair Labor Practice (ULP)?

A

An Unfair Labor Practice (ULP) is a violation of a specific provision in the NLRA or PECBA that is designated as an ULP under the statute.

73
Q

Are ULPs treated the same under the NLRA and PECBA?

A

No, they are not treated the same.

74
Q

What is the first difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, labor organizations, employers, or employees may file a charge with the NLRB and the NLRB.

Under PECBA, unions, public employers, or public employees may file a complaint with the ERB.

75
Q

What is the second difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, the statute of limitations for filing a charge is six months.

Under PECBA, the statute of limitations for filing a complaint is 180 days.

76
Q

What is the third difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, the NLRB conducts an actual investigation and decides whether to file and litigate the charge with the Board acting as the prosecution.

Under PECBA, there is minimal review of complaint and informal answer to determine if issues of fact or law exists, and if so, an impartial hearing is held. The ERB is purely neutral and does not assess merits of the complaint so long as it meets the minimum standards.

77
Q

What is the fourth difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, there is no filing fee for filing a charge.

Under PECBA, there is a $300 filing fee for the Complaint and a $300 filing fee for the Answer.

78
Q

What is the fifth difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, the charge doesn’t require much information because an agent of the NLRB will perform an investigation and may even provide significant guidance in how to file the charges.

Under PECBA, Complaints are more detailed and may be dismissed if not enough information is included.

79
Q

What is the sixth difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, the Agency has broad discretion to decide which cases go forward; the charging party is not a decision maker.

Under PECBA, advocates prepare for and litigate the cases, not the Agency.

80
Q

What is the seventh difference between how ULPs are handled under the NLRA v. under PECBA?

A

Under the NLRA, the Agency does not directly enforce orders. Party to appeals. Courts are not deferential.

Under PECBA, ERB has authority to enforce orders. Appeal goes to Court of Appeals. ERB typically not a party and courts are deferential.

81
Q

What are per se violations?

A

Per se violations are violations that require no subjective showing of bad faith.

82
Q

What are some examples of per se violations?

A

Flat refusal cases and some types of failure to follow bargaining/impasse procedure

83
Q

What are the five most common types of bad faith bargaining complaints?

A

(1) Information Request Cases

(2) Flat Refusal to Bargain

(3) Surface Bargaining

(4) Failure to Follow Bargaining/Impasse Procedures

(5) Direct Dealing

84
Q

What are Information Request Cases?

A

Unions and employers are obligated to provide non-confidential information that is relevant to potential or actual grievances, information that is relevant to bargaining proposals, information that is relevant to discharge of duties as exclusive representative, etc.

Failure to provide is an ULP.

85
Q

What is Flat Refusal to Bargain?

A

One party refuses to bargain over a mandatory subject of bargaining either during contract negotiations or mid-term when they are obligated to bargain on demand by the other party.

86
Q

What is Surface Bargaining?

A

One party just going through the motions.

87
Q

What is Direct Dealing?

A

When the employer deals directly with the employees instead of with the Union.

88
Q

What is another common complaint?

A

Interference, Restraint, or Coercion Regarding a Protected Activity

89
Q

What are the two categories of Interference, Restraint, or Coercion Regarding a Protected Activity?

A

(1) Conduct motivated by protected activities (referred to as the “because of” prong of ORS 243.672(1)(a) in the Public Sector)

(2) Conduct that would naturally chill employee willingness to engage in protected activities (intent isn’t relevant here; referred to as “in the exercise of” prong of (1)(a) in the Public Sector).

90
Q

Do “Because of” Claims require showing of actual anti-union animus?

A

No, they just require a causal connection to employees engaging in a protected activity.

91
Q

What are some forms of protected activity?

A

(1) Right to form, join, or participate in activities of a union.

(2) Right to choose not to join or participate in activities of a union.

(3) Concerted activities to improve working conditions

(4) Filing grievances, holding union office, making statements about union or workplace issues (with some limitations), participating in negotiations, lawful striking, lawful picketing, asking for union representation, testifying in union-related disputes, etc.

92
Q

Do Protected Activities require union membership to actually be protected?

A

No, you can engage in a Protected Activity without being a member of a Union.

93
Q

How can you prove Interference, Restraint, or Coercion of Employees engaging in a Protected Activity?

A

Because employers rarely leave smoking guns, look for circumstantial evidence such as:

(1) Timing of action.

(2) Statements made before and after the Protected Activity that are related to the Protected Activity.

(3) Comparing treatment of similarly situated employees.

(4) Evidence of pretext where legal reasons are offered (look for shifting explanations and changing stories).

Labor Law (3 decks)

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