1(A). A Brief Overview of NLRB Structure and Procedure
1(A)(i). The Board and the General Counsel
NLRB – 5 Washington members (typically 3/2 political parties – 1 chair).
Regions – head of region is Regional Director (not a political appointment – hired job) – works for Board and Regional Counsel.
General Counsel – separate from Board – GC issues complaints and NLRB deals with them.
1(A)(ii). Unfair Labor Practice and Representation Proceedings – given no private right of action, NLRB works primarily in two areas:
§8 – Unfair Labor Practices (ULP, “complaint” proceedings) – procedure: 1)appeal to Regional Director by employees (can decide to issue complaint); 2)litigation in Regional office (Regional Counsel represents gov.); 3)ALJ (employee of Board but paid by OMB) makes finding of fact and law based on Board law; 4)passes to NLRB which may adopt ALJ’s reasoning or take account of the exceptions (General Counsel represents gov.); 5)NLRB order is not self-enforcing – needs to be enforced by Court of Appeals (§10(e)); 6)party may contest Board ruling with the circuit where the ULP occurred, the DC Circuit, or any circuit where the party resides or does business (NLRA §10(f)) – possibility of circuit shopping.
Preliminary Injunctive Relief - §10(l) – for §§8(b)(4)(A-C),(b)(7),(e) – so called mandatory injunction – regional director must go to district court if he has “reasonable cause” to believe in violation (can proceed without NLRB OK) - §10(j) for all other ULPs, requires NLRB authorization to obtain temporary relief of restraining order.
Remedies - §10(c) – allows taking of “affirmative action” to remedy.
§9 – Representation Proceeding (“nonadversary” – parties only “advise” Regional Director who advises Board and ex parte communications between parties is allowed) – requires filing a petition.
Petitions: most common type is where union seeks representation authority through election (what Brown is about) – many issues can be brought up (§9(b)): 1)appropriate bargaining unit; 2)who is a part of the unit and gets to vote (look at “community of interests;” 3)who is excluded from the unit; 4)are there people ineligible to vote under the statute; 5)where/when is election held?
Other petitions: 1)decertification by employer (“individual…acting in their behalf”) or employees (§9(c)(1)(A(ii)); 2)employer claim that more than one labor org. wants to be rep. (§9(c)(1)(B)).
Procedure: 1)commenced at Regional level; 2)Regional Board grants review only where there is a substantial question of law or policy (decision in such a case is not real a violation of NLRA and amounts to more of a warning); 3)given “nonadversary” nature, can’t appeal decision, need to convert it into a ULP proceeding - §9(d) says that record in representation proceeding becomes record in ULP proceeding (therefore, need to raise all relevant issues in rep. proceeding - §10(f) appeal to Court of Appeals).
1(A)(iii). Rulemaking Versus Adjudication – two procedures for making policy:
Adjudication – case-by-case decision making as done by courts (either by ALJs or the Board if appealed to them).
§6 – Rulemaking – Board given power to make and amend rules in carrying out the Act (used very rarely) – under APA, NLRB must first issue notice or proposed rulemaking and provide opportunity for public comment.
Bell Aerospace Co. – USSC upheld the idea that the Board can use either form of policymaking whenever it chose.
Pros of rulemaking: 1)forces dialogue between agency and public; 2)keeps things consistent by wiping out old law; 3)allows the public to participate in the process; 4)limits power of General Counsel.
1(B). Scope of Review of NLRB Determinations – Standard of review depends on nature of the issue in dispute.
1(B)(i). “Substantial Evidence” Standard - §10(e) – questions of fact, if supported by substantial evidence on the record as a whole, will be conclusive – provides significant deference to agency findings of fact – applies to two different kinds of Board determinations: 1)Pure factual findings – adjudicative facts – questions regarding conduct of specific party involved in the case (who did what, where, when…); 2)Mixed questions of fact and law – see below (ex. whether someone is a “student” depends on legal definition of “employee” as applied to what they do).
1(B)(ii). Review of Questions of “Law” and “Policy” – “discretionary judgments” – apply decision in Chevron v. NRDC – court confronts two questions: 1)Step 1 – has Congress directly spoken on the issue in question? Textual analysis; 2)Step 2 – if Congress’s intent is not explicit, court sees whether agency’s answer is based on permissible construction of the statute (court does not substitute its own judgment).
Under Step 2: 1)agency decision need only be “reasonable” rather than the only decision that could have been reached; 2)defer to agency because: a)Congress left the gap in the law for a reason (to let the agency fill it); b)agency has specialized knowledge on the issue; c)policy choices better made by agencies which are directly accountable to people through President.
Mixed Question (same as above) – two step analysis: 1)is agency using proper test/proper legal standard; 2)if it is, is it applying this standard to a proper set of facts?
Questions of Policy – zone of reversible policy making discretion (a certain area within which the agency can move around and change their minds about an issue – ex. seatbelt regulations) – once court has determined what margin the agency has for discretions, agency is allowed to make policy decisions within this area.
1(C)(i). The Commerce Requirement and Other Limitations on NLRB Jurisdiction - §§10(a), 9(c)(1), 1 – NLRB’s jurisdiction extends to cases “affecting commerce” as defined in §2(7) – Board self-limited itself in 1958, saying that commerce only applied where: 1)retail concerns have at least $500,000 annual business; 2)nonretail companies (ex. manufacturing) have at least a $50,000 annual outflow or inflow, direct or indirect.
Religiously-Operated Activities – NLRB v. Catholic Bishop of Chicago – prevented the Board from dealing with any religiously-operated activity that involves employees (interference with 1st Amendment).
Foreign Employee and Company Jurisdiction – no jurisdiction over American citizens who are permanently employed outside of US by American companies although employees in temporary assignment abroad are still covered – jurisdiction over foreign companies doing business in US.
Independent Contractors (§2(3)) – Congress found distinction between “employees” who do a job for a wage, and “independent contractors.”
Tests for “Independent Contractor” Status: 1)right to control (from Restatement of Agency) – does employee have a right to control the manner and means by which the job is done?; 2)economic realities test(Hearst makes it the definitive test used today because of problems with “right to control” test) – looks at underlying economic realities of relationship – treat them as independent contractors only if they are truly independent entrepreneurs.
United Insurance Co. – insurance agents, despite “control” over strategies, were to be considered “employees” under §2(3) because: 1)they didn’t operate their own businesses; 2)were trained by company; 3)did business in the company’s name; 4)receive company benefits; 5)permanent working arrangement with company.
Roadway Package System, Inc. – drivers for company’s small package pick-up and delivery system are employees as defined by §2(3) – significant factor was that many of Roadway’s policies hinder the driver’s from using their trucks during off hours and thus from independently making money – had major specifications for their trucks and therefore after a driver quits, he has pretty much only the option of reselling it to another Roadway driver.
Contrast with Dial-A-Mattress Operating Corp. where the court found that drivers were independent contractors because there was significant entrepreneurial opportunity for gain or loss and a separate identity from Dial.
Supervisory, Managerial, and Confidential Personnel(§2(11)) – only “supervisors” explicitly excluded from “employee” by NLRA (§2(3) – covers pretty much only “touch employees”), “managerial” and “confidential” personnel excluded by case law – separation between providers of capital and providers of labor (each should have their own representatives) – important to exclude them because if the Act does not covers them, they cannot vote in elections and any involvement by them in a union would constitute employer interference under §8(a)(2).
Reasons for Supervisor Exclusion: 1)conflicts of interest; 2)failure to supervise appropriately – if leaders are in a union, they will not supervise properly (will work to minimize effort); 3)coercion of rank-and-filers – problematic to be in a union with people who have power over you (one solution may be to create separate unions); 4)refusal to cross picket lines – one role of supervisors is to cross picket lines because they have a duty to the organization.
Test for supervisors (§2(11)): 1)individual exercising authority in the interest of the employer; 2)you exercise one of the listed duties (ex. hiring, transferring, suspending, etc.); 3)you exercise independent judgment when making your decisions.
Scope of “supervisor” – is it unfair that protection under the NLRA only covers “touch employees” who actually work on the floor, and excludes even middle managers involved in knowledge-based, pro-active roles even if they have similar concerns about job security and fair treatment? Furthermore, many “touch” workers are now given responsibilities in such matters as quality and inventory control and production process development – should they too now be excluded?
Potential Problems – “supervisor” status might exist, but might not fit in certain situations: 1)conferring supervisory status would create an “unrealistic” supervisory ration – does it make sense to say there’s 20 supervisors for 40 employees?; 2)regular employee becomes highest authority during a certain shift; 3)employees do not get any extra pay for their “supervisory” duties or were making less than even those they were supervising.
Managerial Employees – no statute excludes them explicitly – Supreme Court excludes them under decision in Bell Aerospace Co. – 25 buyers from the purchasing and procurement department at the company’s plant are managerial employees according to reviewing court because even if you’re a non-supervisor, you must be excluded if you make or implement established policy for the employer – on remand, the Board upheld their prior decision that these buyers were employees, adding to the above definition that managers must also “have discretion in the performance of their jobs independent of their employer’s established policy” (3rd prong on §2(11)) but that employees didn’t in this case (only implemented established policy).
Confidential Employees defined as those who “assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.”
Labor Nexus Requirement – NLRB v. Hendricks – exclusion only applies to those who have access to confidential information that is labor-related (labor nexus) – therefore those who have access only to confidential business information are not excluded.
Professional Employees (§2(12)) (ex. nurses) – typically covered by the Act – creates tension with the exclusions since very often, professional employees have supervisory roles, but this is often tied to their professional role, but only when they perform a supervisory function not linked to their professional role do they fall under the §2(11) exclusion – although USSC three times rejected attempts by the Board to broadly define professionals as nonmanagerial or nonsupervisory:
NLRB v. Yeshiva – found full-time faculty employees to be “managerial” but said that this doesn’t mean they should be excluded as managerial under the Act unless “their activities fall outside the scope of duties routinely performed by similarly situated professionals” (§2(11)).
NLRB v. Health Care & Retirement Corp. of Am. – LPNs’ were excluded supervisors because direction of less-skilled employees was done in the “interest of the employer” in relation to determining their supervisory status ( §2(11)).
NLRB v. Kentucky River Community Care, Inc. – Court rejected argument that RNs were not supervisors because they didn’t “exercise independent judgment” (§2(11)) – “independent judgment” must be applied the same way to all 12 of the listed supervisory functions in §2(11), regardless of whether the employees were professionals.
Students as Employees?§2(3) does not specifically exclude students who work for the school but since 1976, the Board said they were “primarily students” and therefore not covered.
New York University – Board determined that graduate TAs should be considered statutory employees – even though they only worked 15% of the time, this just pointed to the idea that they were part-time rather than full-time employees – also pointed out that teaching was not a prerequisite to getting their degree (in many departments).
Brown University – overturn NYU decision on grounds that being a TA was inexorably linked to degree requirements and the role of employee could not be distinguished from the role of a student in the TA position – job was not economical, but rather educational in nature.
2. PROTECTION OF CONCERTED ACTIVITY
2(A). The Concepts of Discrimination and of Interference, Restraint, or Coercion – two different kinds of violations:
2(A)(i). Violations Based on Employer (or Union) Motivation – usually revolves around §8(a)(3) for employers and §8(b)(2) for unions – similar to Title VII except that discrimination is tied to union activity.
§8(a)(3) violation for employer when: 1)discrimination (towards §7 activity); 2)in regards to “hire or tenure of employment” or “terms or conditions of employment;” 3)that “encourages or discourages” membership in a labor organization.
§8(b)(2) violation for union requires: 1)causing or attempting to cause employer to discriminate against employee under §8(a)(3); or 2)discriminating against an employee dropped from the labor organization for reasons other than failure to pay dues.
Remedies - §10(c) deals with remedies for §8 violations – typically: 1)cease and desist order; 2)affirmative steps to effectuate policies of the Act: a)reinstatement, b)back pay.
Edward G. Budd Manufacturing Co. v. NLRB – petitioner was great at supporting internal labor organization but eventually fired one of organization’s representatives, Weigand, when he tried to join the CIO, an external labor organization not affiliated with the plant – petitioner claimed that he was let go because of accumulated offenses – court upholds NLRB ruling (§8(a)(3) violation) because he got repeated raises despite offenses because he was a representative and then was suddenly fired when he happened to join the CIO (makes no sense and is clearly the result of discrimination based on union activity) – employer can retain employee for any reason, and the NLRA would not be concerned, but employer cannot fire an employee for union activity – court also finds §8(a)(2) violation.
Dual Motives – clearly this was a case of duel motives for dismissal and it isn’t always clear under what motives an employer is acting.
NLRB v. Transportation Management Corp. – employer can avoid violating the statute if he can show that discharge was imminent even had employee not been involved with the Union (§10(c)) – is burden to prove this placed on employer? USSC determines that §10(c)does not forbid placing burden on employer to prove that he would have discharged the employee for legitimate reasons absent the improper motivation (union activity) – NLRB’s interpretation of the NLRA is reasonable and permissible (Chevron step 2) – here, employer did not meet burden of proof and was deemed guilty of §8(a)(3) (anti-union animus played a role in the decision).
Interpretation of §8(a)(3) – as far as the NLRB is concerned, §8(a)(3) is violated as long as there is an illegitimate discriminatory motive, regardless of the possibility that something else played a role.
Employer “Same Decision” Defense – employer is not liable under §8(a)(3) if he can prove he would have made the “same decision” even absent the union activity.
After-Acquired Evidence – McKennon v. Nashville Banner Publishing Co. – facts learned after the unlawfully motivated employment decision that would have justified a legitimate termination cannot serve as a complete defense and plaintiff may still obtain backpay for the period before the employer discovered the grounds for legitimate termination (but employee gets nothing for time after discovery).
Note: NLRA Remedies in Discharge and Failure to Hire Cases
Forced Hiring – Phelps Dodge Corp. v. NLRB – the court upheld an §8(a)(3) order calling for hiring an applicant who had been rejected because of union affiliation, even though the applicant had already attained substantially equivalent employment – reasoning was that the Act was designed to effectuate public policy and was not limited to fixing private losses – also required to award back pay minus actual earnings.
Fired Employees Looking for Alternate Employment – failure to find “substantially similar” employment will not be grounds for saying they haven’t mitigated although some courts have held that if employment hasn’t been found for a long time, the employees sights should have been lowered (NLRB v. Madison Courier, Inc.).
2(B)(ii). Violations Based on Impact of Employer (or Union) Actions – Board and Courts will seek to prohibit activities that “impact” employees by “encouraging” or “discouraging” union activity (§8(a)(3)) or “interfere with, restrain, or coerce” them in the exercise of their §7 guaranteed rights (§8(a)(1)).
Differential Treatment for Employees in “Good Standing” – Radio Officers’ Union v. NLRB – question was whether employer violates §8(a)(3) and union violates §§8(b)(1)(A),(b)(2) by making employer make employment decisions that treat union members in “good standing” differently from nonmembers, or members not in “good standing” where there is no additional proof that employer’s intent in such treatment was “to encourage or discourage membership in any labor organization.”
Act Only Covers Specific Discrimination – USSC says that statute doesn’t necessarily outlaw all “discrimination,” only that where the final result “encourages or discourages membership in a labor organization.
No Intent (Anti-Union Animus) Requirement – as long as the final result was “encouragement or discouragement,” an employer’s protests that he did not intend to encourage or discourage are not accepted (sometimes effects of actions is so likely that we infer intent) – in turn, union found guilty for causing employer’s §8(a)(3) conduct.
No Moonlighting Rule – §8(a)(3) violation if employer prohibits employees from working at his place if they already hold another job? Might be if someone discloses that they are a union organizer and then isn’t hired – employer must prove that rule had no discriminatory intent and that discrimination was not a likely effect (Radio Officers).
Salts – unions purposely try to insert union organizers into jobs in nonunion places – would argue that no moonlighting rule seems neutral but is intended to keep their guys out.
“No Solicitation” Rule – Republic Aviation Corp. v. NLRB – employer has “no solicitations rule” (prohibits solicitations on his property) and discharged employees for breaking it – creates conflict between right of self-organization of employees (§7) and property rights of employer.
Possibility for Outside Solicitation – Defendant claims that there’s no reason to allow solicitation in the workplace if it’s possible to reach people outside of it (might be different in the case of a mining or lumber camp) – Court rejects this and looks at Board precedent to find §8(a)(3) violation.
Peyton Packing Presumption – Board rule, which Court upholds, is that absent circumstances that make it necessary to prohibit all solicitation in the workplace (ex. because of production concerns), it would be a violation of an employees §7 right to prevent him from solicitations on employer’s property during non-work time, even if this isn’t the intent.
No Intent Requirement for §8(a)(1) – NLRB v. Burnup & Sims Inc. – like for §8(a)(3) violation, as long as effect of action is “interfering, restraining, or coercing” in exercise of §7 rights, then there’s an §8(a)(1) violation, even if there was no intent to produce such an effect.
Not All §7 Restraints Violate §8(a)(1) – Peyton Packing presumption includes two avenues for employers: 1)if there’s no intent to discourage §7activity, employer can prohibit solicitations during working time; 2)if employer can prove “special circumstances,” can prohibit solicitation on company property across the board.
“Working Hours” vs. “Working Time” – Board does not allow rules that prohibit solicitation during “working hours” because employees might construe this to mean prohibitions during lunch, etc. which aren’t allowed.
Solicitation vs. Distribution – employer can prohibit distribution to nonworking areas even during nonworking time, although many things (such as union cards) are considered solicitations.
Privileged Broad No-Solicitation or Distribution Rules – Board allows broad bans on solicitations and distribution in certain industries (ex. “selling areas” in stores, or “immediate patient care” areas in hospitals, even during non-work time) – idea is that there’s a presumption it would disrupt customers or patient care – however, as a result, this also means solicitation is allowed in “patient access” or “visitor access” areas of a hospital absent a showing it’s disruptive.
Discriminatory Adoption or Application of No-Solicitation/No-Distribution Rule – otherwise valid rule is illegal if: 1)proven that it was adopted for an immediate discriminatory purpose; or 2)if enforcement/application of the rule was performed in a discriminatory manner (ex. singling out union activity) – however, employer may keep rule but still allow a little charitable solicitation.
Application of No-Solicitation/No-Distribution Rules to Use of Employer’s E-mail System – No Board decision but seems that prohibiting use of e-mail for solicitation or distribution during nonworking time would be illegal.
2(B). The Accommodation of §7 Rights and Employer Interests 2(B)(i). Interest in Maintaining Production and Discipline – Board and court assume the Congress did not intend to completely sacrifice employer interests in running their business, when giving employees protection under