Glossary of LABOR LAW I
Other Decks By This User
- Republic Aviation Corp v. NLRB
- Probably the most important case in Labor Law history.
NLRB Orders on Complaints of unfair labor practices must be based upon evidence which is placed before the board by witnesses who are subject to cross-examination by opposing parties.
: This case (described as the Marbury of Labor Law) weighs the rights and obligations of employers and employees and shows that the right to self-organization trumps most employer rights.
- Peerless Plywood Test
24 Hour Rule
- Employer is allowed to give a captive audience speech, but not within 24 hours of an election.
- Excelsior Underwear Decision
- Within 10 days (old rule 7) after the announcement of an election, the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all eligible voters. The RD, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.
An employer has the opportunity to communicate with employees on the premises and therefore enjoys the ability to continue to share his views with respect to union representation. On the other hand, without a list of employees names and addresses, the union, who generally has no right to enter the property, has no method by which to communicate to the employees their views on union representation, and as a result employees are usually unaware of that viewpoint. Because it is fundamentally fair to process of free elections, the union shall be provided with a list of eligible voters, regardless of whether the union has solicited membership from them in the past via the mail.
- Dal-Tex Optical (NLRB 1962)
Threats of Reprisals
- Where ER’s statements are REASONABLY CALCULATED to create fear that there would be loss of employment and financial security if union won, then employer has committed a §8(a)(1) violation.
During a unionization election, employers cannot make predictions that employees will lose their jobs- amounts to coercion. Employers cannot predict a strike. Cannot predict or draw conclusions.
What can an employer say?: Vote no, anti-union statements, statements against a particular union, state any truth about the union (relevant or irrelevant-union person has felony conviction) Can point out the unions past factual history (strikes).
- NLRB v. Gissel Packing Co.
- An employer is free to make a prediction to his employees as to the precise effects he believes unionization will have on his company only when such prediction is carefully phrased on the basis of objective fact as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.
- Strukness Construction Test
for Polling employees
- Test: Absent unusual circumstances, the polling of employees by an employer will be violative of § 8(a)(1) of the Act unless the following safeguards are observed:
1. The purpose of the poll is to determine the truth of a union’s claim of majority,
2. This purpose is communicated to the employees,
3. Assurances against reprisal are given,
4. The employees are polled by secret ballot, and
5. The employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere (no polling at all if there is a unfair labor practice charge).
- An organization is a labor organization under NLRA if...
- a. Employees participate,
b. The organization exists, at least in part, for the purpose of “dealing with” employers, (The Supreme Court in Cabot held that the term “dealing with” in §2(5) is broader than the term “collective bargaining” and applies to situations that do not contemplate the negotiation of a collective bargaining agreement.), and;
c. The dealings concern “conditions of work” or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment.
- Run Away Shops
- This describes when an employer who is being threatened with unionization, picks up and relocates. Is this a violation? Garwin Corp. explains that this is a violation of § 8(a)(3) when the move is motivated to escape the union. However, a business can completely go out of business – the NLRB cannot require a business to stay in business. In Rapid Bindery, the business was unionized after an election and the company moved to a new location because of the need for a new facility. The NLRB found a violation but the court of appeals reversed because the company’s need of a new facility was a sound business move and not a mere pretext. What is the outcome if a company goes out of business only later to come back in a different form? The answer is not clear.
- Remedies for Unfair Labor Practices
- What are the remedies for a ULP? Under § 8(a)(2) in the case of domination by an employer the remedy is usually a dissolution of the union. If it is a case of illegal support, you take away that employer support and start anew. Under § 8(a)(1)—election violations, the remedy is usually a cease and desist order and also the NLRB has the authority to overturn the elections and order a new election. In more egregious violations of § 8(a)(1), the NLRB can order the employer to bargain with the union even if they were not properly elected (See p. 257 “Bargaining Order”). What about violations of § 8(a)(3)—discrimination cases? (i.e., firing, not hiring because of union affiliation).
- Remedies for Coercion and Discrimination
- The NLRB remedial powers after a violation of the Act are restorative and corrective---not punitive! As in Phelps, the goal is to make the employee whole again and not to punish the employer. Made whole can include reinstatement, back pay, giving the employee the promotion they would have had, deleting a work record placed in their file. Unions have argued that this is not enough and there should be punitive measures to deter future violations by the employer. The problem is that the NLRB may have once had the authority to issue punitive damages but the never exercised it and denied having it (power not used is not power at all). The problem that becomes apparent is that rehiring an employee is far less costly that letting the union in under a cost-benefit analysis. Unions have argued for treble damages (3X) but again the NLRB does not punish. In sum, under §8(a)(3) the punishment is not adequate to deter. Employers don’t care if it costs them a minimum to keep the union out. This loophole could be fixed by punitive damagers.
- Authorization Cards
- Requires 30% of employees granting permission they are filed with the petition.
Card includes the date and employees signature.
- Two Things required to have an 8(a)(3) violation...
- 1) Encouraging or discouraging union membership, and 2) Discrimination.
- Section 8(b)(4)(a)
- Secondary Pressure: States that it is "an unfair labor practice for a labor organization . . . to engage in . . . a strike . . . where an object thereof is forcing or requiring . . . any employer or other person . . . to cease doing business with any other person."
- Moore Dry Dock Test - Ambulatory Situs
- When the situs of the primary employer is ambulatory, there must be a balance between the union's right to picket and the interest of the secondary employer in being free from picketing. There are four standards for picketing in such situations which would be presumptive of valid primary activity:
1. The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer’s premises; (Thus, a union cannot picket in advance or after situs leaves.)
2. at the time of the picketing the primary employer is engaged in its normal business at the situs;
3. the picketing is limited to places reasonably close to the location of the situs; (proximity-picketers must confine themselves to an area that would be closest to the situs and which would do the least disruption of others) and
4. the picketing discloses clearly that the dispute is with the primary employer (identity).
You must Login or Register to add cards