INTRODUCTION TO NLRBPRACTICEPresented byMartha KinardRegional Attorney
National Industrial Recovery Act - 1933 Created in 1935 by Congress Declared constitutional in 1937 Wagner Act – 1937 Taft Hartley Act – 1947 Landrum-Griffin Act - 1959 A LITTLE HISTORY
TWO PRINCIPAL FUNCTIONS • To determine and implement through secret ballot elections the choice by employees as to whether they want to be represented by a union • To prevent and remedy unlawful acts by either employers or unions or both
THE BOARD A five-member Board reviews cases that have been decided by the ALJs as well as cases that go directly to the Board, in both unfair labor practice (C cases) and representation (R cases) cases.
ADMINISTRATIVE LAW JUDGES • Division of Administrative Law Judges (ALJs) hears unfair labor practice cases and, when consolidated with ULPs, representation case objections and challenges. This Division also has offices in New York, Atlanta, and San Francisco.
REPRESENTATION APPEALS Office of Representation Appeals reviews appeals of decisions in R cases.
EXECUTIVE SECRETARY Office of Executive Secretary receives all documents filed with the Board.
ORGANIZATIONAL STRUCTUREOF THE NLRB The NLRB is divided into two distinct Offices: • Board • Office of the General Counsel Within each Office, there are various administrative and casehandling divisions and branches.
OFFICEOF THE GENERAL COUNSEL Division of Operations - oversees regional offices Division of Advice - 3 branches Regional Advice Branch reviews novel or complex cases, directing the region on disposition of the case. Injunction Litigation Branch handles 10(j) and other injunction proceedings. Research and Policy Planning Branch deals with legal research and policy planning as it relates to casehandling and the law.
OFFICEOF THE GENERAL COUNSEL Enforcement Litigation - has five branches • Office of Appeals handles appeals of dismissals and deferrals issued by the regions. Appellate Branch deals with cases in which a Board order issues and a party to the case requests review, or the Region seeks enforcement, in the Court of Appeals. Supreme Court Branch handles cases that are taken to the Supreme Court. Contempt Litigation Branch takes court action when a respondent refuses to comply with a court order. Special Litigation Branch handles litigation that may or may not relate to a specific case.
FIELD OFFICES Division of Operations includes personnel in headquarters as well as approximately 51 field offices spread throughout the country. • 32 Regional Offices 3 Subregions, each of which is under a specific regional office but operates much like a regional office 16 Resident Offices, which operate as small satellite offices for specific regional offices
FIELD OFFICES Each regional and subregional office covers a defined geographic area and accepts charges and petitions filed against employers or unions in that area. The regions process their cases from filing to closing, with involvement by headquarters offices at certain stages.
THE ACT (NLRA) The NLRB administers and enforces the National Labor Relations Act (NLRA). Generally, the Act gives employees the right to organize and to bargain collectively with their employers through representatives of their own choosing, or not to do so. Section 7 of the Act gives employees the following rights: • Form, join, or assist a union; • Choose representatives to bargain with their employer on the employees’ behalf; • Act together with other employees for their benefit and protection; • Choose not to engage in any of these protected activities.
TYPES OF CASES In administering the Act the NLRB deals with two types of cases: R cases (representation petitions) C cases (unfair labor practice charges)
TYPES OF R CASES RC Cases:Filed by a Union which wants to represent employees of a particular employer. Whether the Union becomes the bargaining representative of the employees is decided by a secret-ballot election conducted by the Board. RD Cases: Filed by an individual who wants to decertify the Union which currently represents employees of a particular employer. Whether the Union continues to represent employees is decided by a secret-ballot election conducted by the Board. RM Cases: Filed by an Employer who questions whether the Union should continue to be the bargaining representative of its employees. Whether the Union continues to represent employees is decided by a secret-ballot election conducted by the Board.
TYPES OF R CASES UD Cases: Filed by an individual who wants to vote on whether the Union security clause in the contract between the Employer and the Union should remain effective. UC Cases:Filed by an Employer or a Union to clarify which employees are included in the bargaining unit. These cases do NOT involve an election. AC Cases:Filed by an Employer or a Union to clarify the name of the Employer or certified bargaining representative. These cases do NOT involve an election.
R Case Processing Based on the type of petition filed, the NLRB may: Conduct secret-ballot elections in which eligible employees vote for or against union representation. These are RC CASES. Conduct secret-ballot elections where a union is already the recognized representative to allow employees to vote for or against continued representation by this union. These are RD and RM CASES. Conduct secret-ballot elections in which employees vote for or against a union-security clause allowing the deduction of union dues from their paychecks. These are UD CASES. Amend or clarify a certified bargaining unit. These are AC and UC CASES.
R Cases: FILING A PETITION An R case is filed on a petition form supplied by the Agency. This form has a place to describe the proposed or existing bargaining unit and the number of employees in the unit. A bargaining unit is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The bargaining unit cannot include supervisors, agricultural laborers, or independent contractors. Most often the bargaining unit is limited to a single facility of an employer, but it can include employees from more than one facility.
R Cases: FILING A PETITION When filing an RC, RD or UD petition, the petitioner must submit a showing of interest from the employees in the proposed or existing bargaining unit. The showing of interest includes cards signed and dated by the employees in the bargaining unit, or a list of signatures and dates. In order to be accepted the showing of interest must be at least a 30% of the bargaining unit.
R Cases: PROCESSING THE PETITION When a petition seeking an election is filed, the petition is assigned to an agent who talks to the parties and attempts to reach agreement for an election, called a stipulated election agreement or a stip. The stip covers: Jurisdiction of the Agency (no jurisdiction over airlines, agriculture) Scope of the bargaining unit (who will be eligible to vote) Date, time, and place of the election If the parties are NOT able to agree to a stip, a Notice of Hearing issues setting a Hearing before a Hearing Officer who will be an agent from the Regional Office. That hearing is usually held 10 to 14 days after the petition was filed.
R Cases: PRE-ELECTION HEARING After the hearing is held, the case is assigned to an agent to draft a decision for the Regional Director. Decision and Direction of Election (orders an election) Decision and Order (dismisses the petition)
R Cases: ELECTION ARRANGEMENTS When the NLRB decides to proceed to an election, either because of a stip or a Decision and Direction of Election, the following occurs: • A date, time and place for the election are set. The elections are almost always held at the employer’s facility. • Notices of Election are posted at the employer’s facilities in locations where the employees who are eligible to vote will see them. • A list of eligible voters is provided by the employer for the NLRB’s and Union and Petitioner’s use. • The region prepares paper ballots for use in the election.
ELECTION When the election is held: • Voting booths are set up to ensure privacy for the voters and a box is prepared for collection of the ballots. • The polling area is closed off to all unauthorized persons. Only the Board agent and the parties’ observers remain during the election. • Voters are given a ballot and a pencil to use in the voting booth. Upon completion of the ballot, the voter folds it and places it in the ballot box.
R Cases: TALLYING THE BALLOTS • After the polls are closed, the ballots are counted by the Board agent under the watchful eye of the observers and other representatives of the parties. • The Board agent completes the Tally of Ballots, indicating how many votes were cast for and against the union, the number of challenged ballots and if they affect the outcome of the election, and whether a majority of the votes were cast for or against the union. In order to obtain a majority, 50% plus 1 of the votes counted must be cast for the union. • The parties sign and are given a copy of the Tally of Ballots.
R Cases: POST-ELECTION After the election: • Either party may file objections to conduct before or during the election. If the objections are filed either an investigation or hearing may be held to determine if they have merit and a rerun election should be held. • If the challenged ballots do not affect the outcome of the election (if they are not determinative), they are not resolved. If the challenges are determinative, either an investigation or a hearing, or both, occurs to determine if the challenged voter was eligible and the vote should be counted. • If a hearing on Challenges or Objections is held, the Hearing Officer issues a report. That report may be appealed to the Board.
R Cases: POST-ELECTION Objections and Challenges may be consolidated with a related ulp case for hearing before an Administrative Law Judge. If challenges are to be opened and counted, a time is set for the opening and counting of the challenged ballots, and a revised Tally of Ballots is issued.
CERTIFYING THE ELECTION If there are no challenges or objections, or when challenges and objections have been resolved, a Certification of Representative or a Certification of Results is issued: • A Certification of Representative indicates that a labor organization won the election and is being certified as the collective-bargaining representative of the unit. • A Certification of Results indicates that no labor organization won the election.
C Cases: ULP CHARGES Unfair labor practice charges may be filed against either: • Employer • Labor Organization (commonly called a Union) Specific sections of the NLRA define certain practices of employers and unions as unfair labor practices.
CA Cases: CHARGE AGAINST EMPLOYER An unfair labor practice charge against an employer would allege a violation of one of the following Sections of the Act: Section 8(a)(1) Section 8(a)(2) Section 8(a)(3) Section 8(a)(4) Section 8(a)(5)
CA Cases: CHARGE AGAINST EMPLOYER Common examples of unfair labor practices by an employer include: 8(a)(1): Threats and coercive statements Surveillance of employees’ activities Interrogation or harassment of employees Promise of benefits Disparagement of union or its supporters No-Solicitation/No-Distribution rules Discharge, suspension or layoff Changes in employment/working conditions, wages or benefits Disciplinary actions Shutdown or relocation of facility
CHARGE AGAINST EMPLOYER 8(a)(2): Dominating or interfering with the formation or administration of a labor organization Contributing financial or other support to a labor organization Creation of an in-house organization Unlawful recognition of a labor organization
CHARGE AGAINST EMPLOYER 8(a)(3): Discharge, suspension or layoff Changes in employment/working conditions, wages or benefits Discipline Promotions withheld Refusal to hire Lockout of employees Shutdown or relocation of facility
CHARGE AGAINST EMPLOYER 8(a)(4): Discharging or otherwise discriminating against employees because they have given testimony under the Act
CHARGE AGAINST EMPLOYER 8(a)(5): Bad-faith bargaining Refusal to furnish information Direct dealing with employees Unilateral changes in terms or conditions of employment Repudiation/modification of contract Refusal to recognize Failure to sign agreement
CHARGE AGAINST LABOR ORGANIZATION Common examples of unfair labor practices by a labor organization include the following: 8(b)(1)(A): Breach of duty of fair representation Coercive statements, including threats Surveillance, interrogation, harassment Requiring payments other than dues Excessive fees Violence/assaults
CHARGE AGAINST LABOR ORGANIZATION Common examples of unfair labor practices by a labor organization include the following: 8(b)(2): Causing an employer to discriminate against an employee because of the employee’s union activity
CHARGE AGAINST LABOR ORGANIZATION Common examples of unfair labor practices by a labor organization include the following: 8(b)(3): Refusal to furnish information Repudiation/modification of contract
CHARGE AGAINST LABOR ORGANIZATION Common examples of unfair labor practices by a labor organization include the following: 8(b)(4)(A): 8(b)(4)(B): 8(b)(4)(C): 8(b)(4)(D): 8(b)(7)(A): 8(b)(7)(B): 8(b)(7)(C): Picketing Actions of Picketers Reserved Gate Issues Handbilling Language on Picket Sign/Handbill
C Cases: INVESTIGATION The Board agent assigned to the case may be a Field Attorney or Field Examiner. That agent will investigate the case by: • Taking affidavits from witnesses • Gathering and reviewing evidence from both the charged party and charging party • Reviewing position statements from the parties • Researching related cases, as well as Board and Court decisions
C Cases: DETERMINATION and DISPOSITION Upon completion of the investigation, a regional determination is made on the merits of the case. Then one or more of the following occurs: • Case is dismissed and may be appealed to Office of Appeals. • Charging Party withdraws charge. • If merit is found, absent settlement, complaint will issue.
DISPOSITION • Parties may determine they desire to settle a case. Settlement may be reached either prior to or after complaint issues The Act is a make-whole statute – typical remedy for discharge would be reinstatement, backpay and posting a Notice.
C Cases: LITIGATION When complaint issues, the case enters the litigation stage and, absent settlement, the following may occur: • The hearing will be held before an administrative law judge. That judge will attempt to settle the case but if not will immediately begin the hearing. We have no juries – this is all an administrative process. • The attorneys will examine and cross-examine witnesses and present documents to the judge. • No juries
C Cases: LITIGATION At the hearing, a transcript of the proceedings is prepared by a court reporter. The parties submit briefs to the ALJ. In some instances, the ALJ may render a bench decision right on the spot
C Cases: LITIGATION Normally, using the briefs, transcript of the case and his/her own legal research, the ALJ issues a Decision, finding merit to some, all, or none of the allegations. Any party, including the GC, may file exceptions to the ALJ’s decision with the Board (Executive Secretary’s office). Parties may respond to exceptions by filing answering briefs and/or cross exceptions. Based on the record and briefs, the Board issues a decision and order, adopting or modifying the ALJ’s decision.
Appeal • Appeal from Board Order is to the Circuit Court – in our case the 5th Circuit • Appeal from the Circuit is to the U.S. Supreme Court
WEBSITE BEST RESOURCE: WWW.NLRB.GOV YOU WILL FIND: • Board Decisions • ALJ Decisions • Press Releases • Historical Information • Basic Information about the Board • Charges, Petitions, and Other Forms