MGMT 6320 Labor Management Relations. Chapter 4 – The National Labor Relations Act (NLRA): The Wagner Act as amended (by Taft-Hartley & Landrum-Griffin). Purpose & Coverage.
MGMT 6320 Labor Management Relations Chapter 4 – The National Labor Relations Act (NLRA): The Wagner Act as amended (by Taft-Hartley & Landrum-Griffin)
Purpose & Coverage • Purpose: Provide workers with legal protection in their rights to organize and bargain collectively through representatives of their own choice • Coverage: Firms engaged in interstate commerce - set in terms of the Dollar volume of business the firm does annually (pp. 62-63 Twomey). • Enforcement: The National Labor Relations Board (NLRB) – (Offices & Basic Procedures pp. 58-59 Twomey). • http://www.nlrb.gov/
Administration of the NLRB • Five member board appointed by the president • General Council: responsible for investigation & prosecution of the act • Regional Directors: • Board has delegated its authority over representation elections to the regional directors. • General Council has delegated authority to issue complaints in unfair labor practice (ULP) cases to the regional directors • Administrative Law Judges (ALJ): conduct formal hearings on ULP complaints issued under authority of the General Council. ALJ decisions may be appealed to the Board.
Decisions Issued by Two-member Board • New Process Steel LP v. NLRB: U.S. Supreme Court – held that decisions of the Board from January 1, 2008 through April 2010 were invalid. Board attempted to operate with only 2 members. • https://mynlrb.nlrb.gov/portal/nlrb.pt?open=512&objID=219&mode=2&in_hi_userid=18794&cached=true
Coverge • Exempt Employers: Federal Govt.; State or political subdivisions; Railroads, Airlines, or Companies subject to Railway Labor Act (RLA); Foreign crews on foreign flag vessels temporarily in US ports; Certain Religious Organizations; • Exempt Employees: Agricultural Laborers; Domestics within a person’s home; individuals employed by a parent or spouse; Independent contractors; supervisors; workers under the Railway Labor Act; Employees of employers not covered by the NLRA.
Key Points • An employee does not have to be a member of a union. A certified union does not have to be involved, and there does not have to be an organizing drive in existence for an employee to have protection under the NLRA. Section 7 of the Act guarantees all employees the right to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection. • Section 8(a)(1) prevents employers from interfering with employees attempting to exercise Section 7 Rights; Its an Unfair Labor Practice to interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7 (Chapter 5).
Enforcement • The NLRB handles two kinds of legal questions: 1. Unfair Labor Practice Charges & 2. Representation Elections • The NLRB does not initiate proceedings • The NLRB does not restrict who can file ULP • Election Petitions may be filed by either employees or the employer • Section 7 of the act guarantees all employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection
Employees Under the NLRAUnion “Salts” • “Salts” – union organizers (sometimes paid, sometimes not) who target employer’s to apply for employment (NLRB v. Town & Country Electric, Inc., key court case). • To establish a refusal to hire violation of the NLRA: • General counsel must show 1. the respondent was hiring; 2. the applicants were qualified; 3. that antiunion animus contributed to the decision not to hire the applicants. • Toering Electric Co. 2007 – General Counsel must prove in hiring discrimination cases that the alleged discriminatee had a genuine interest in seeking to establish an employment relationship with the employer. • Supervisors – 3 part test for determining supervisory status – excluded from the protections of the NLRA. • Professionals – are within the protection of the NLRA – eg. Engineers, physicians, nurses, reporters, and symphony orchestra musicians.
Majority Bargaining Rights • The NLRB has delegated most of its authority over representation cases to the regional directors: • 1. Decide whether a question concerning representation exists: • 2. Determine appropriate bargaining units; • 3. Direct and conduct elections; • 4. Certify the results of elections; • 5. Rule on challenged ballots and objections to the election.
Selecting the Appropriate Bargaining Unit • In most nonunion companies, current employees initiate the union organizing process. • The initial phases of the process are carried out in secret. • When management does find out, the typical reactions are: shock, frustration, & anger. • One of management’s biggest mistakes at the beginning of the process is to underestimate the union organizer. • Employees must present a 30% showing of interest to initiate formal proceedings.
Appropriate Bargaining Unit Guidelines • Physical Location of facilities. • Differences in skill requirements. • Degree of ownership and managerial integration. • The collective bargaining history. • The extent of organization. • Craft Severance – severance of a bargaining unit composed of craft workers within a larger unit. • Professional and nonprofessional workers may not be included in the same unit unless a majority of professionals first vote to be part of an overall unit. • Plant guards may not be included in a unit with other employees of the same employer.
Section 9 of the NLRA: Determining Employees’ Choice • The Election Process – • The NLRB supervises two basic types of election processes: 1. Certification 2. Decertification. • Certification elections determine if the employees will or will not be represented by a union. The union wins if 50% plus 1 of those who vote in the election, vote for the union. • Decertificaiton elections must be initiated by the employees and are an attempt to remove a union as the exclusive representative of the employees. • The role of the 1st line supervisor is critical in both types of elections.
Determining Employee Choice • Recognition without a Board Election – • Card check: recognition of the union by the employer after a designated neutral 3rd party confirms that the union has obtained authorization cards from an agreed-upon percentage of the bargaining unit. • “Recognition bar doctrine” – does not bar a decertification petition or rival union petition that is filed within 45 days of the notice of recognition. • NLRB concern with card check recognition –lack of privacy - misinformation.
Representation Elections • Certification Procedures – • Initiated by filing of a representation petition; must be supported by a 30% showing of interest – signed authorization cards or a signed petition. • Employees are limited to one valid election in a 12-month period. • Regional NLRB staff manages – consent election agreement or stipulation for certification – average time to election – 43 days. • Voter eligibility: employee status on the date of the election; economic strikers are allowed to vote if election conducted within 12 months of the start of the strike. • Certification year bar – no petitions challenging a union’s majority status will be considered by the NLRB during the year following certification by the NLRB.
Decertification Procedures – • Same 30% showing of interest required. • Petition may not be initiated by an employer, a supervisor, or another agent of the employer. • Employer options: • RM election (Representation Management): • when employer questions the continuing majority status of a union; employer must provide prove “actual loss” of majority support.
Election Conduct & Free Speech • Pre-election rules – • Peerless Plywood “24 hour rule” – prohibits both unions and employer from delivering speeches to captive audiences within 24 hours of an election. • Excelsior Underwear – employers required to provide a list of names and addresses of all employees eligible to vote in a representation election (Excelsior List). Must be provided within 7 days after an election has been directed or agreed upon. • Violation of these rules may be grounds for setting aside an election. • Employer Free Speech – • “No threats of reprisal or force or promise of benefit”; Gissel Packing Co. case – employer may state “likely economic consequences of unionization that are outside the employer’s control”. • No-solicitation rules – • General rule: employer may prohibit union solicitation by employees during work periods; • E-mail: employer must consistently enforce policy • Necessity of Non-discriminatory enforcement of Rules: St. Margaret Mercy Healthcare Centers v. NLRB case.
Election Propaganda & Misrepresentations • Shopping Kart-Midland National Life rule: • NLRB will not “probe into the truth or falsity of the parties’ campaign statements” but would instead recognize and rely on employees ability to recognize campaign propaganda for what it is worth.
Bargaining Rights Based on Authorization Cards • Gissel Packing Co. case – NLRB bargaining orders based on authorization cards; utilized when NRLB determines that employer conduct resulting in unfair labor practices undermines the union’s majority. Certain employer violations are consistently regarded by the NLRB & the courts as “highly coercive of employee’s Section 7 rights”. • “Hallmark violations” – • Plant closures or threats of plant closures • Unlawful discharge of union adherents • Threats of job loss or granting of significant benefits to employees
Remedies • Temporary – temporary injunctive relief • Final Remedies – “cease and desist”; reinstatement – with or with-out back pay. NRLB may petition an appropriate U.S. Court of Appeals for enforcement. • Remedies Available to Undocumented Aliens – • Conditional reinstatement