The National LaborRelations Act andTraditional Labor Law

Labor Timeline (1)

• Slavery, European Guilds, Early America• The Industrial Revolution: Capital vs. Labor• The Pullman Strike• The AFL and CIO• Anti-trust laws• 1932 Norris LaGuardia Act• 1935 Wagner Act

Section 7 Protected Concerted ActivitiesNational Labor Relations Act

WagesHours

Working ConditionsConcerted =More than OneNonsupervisory Employees

Section 729 USC§157. Right of employees as to organization, collective bargaining, etc.Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.

Labor Timeline (2)• 1937 NLRB v. Jones & Laughlin• 1941-5 World War II, War Labor Board• 1947 Taft-Hartley amendments to NLRA• 1959 Landrum-Griffin amendments to NLRA• 1970 US Postal Service included• 1974 Healthcare included• 2010 New Process Steel v. NLRB• 2014 NLRB v. Noel Canning

Coverage• Interstate Commerce

– Retail $500K – Non-retail $50K crossing state lines– Others

• Football players?• Franchise owners?

• No coverage for– Agriculture – but see Arizona Agricultural Employment Relations Act– Supervisors – Section 2(11) of NLRA - managerial– State, local, federal employees– Indian Country – only if business owned by Tribe– Airline, railroad– Independent contractors

Organization• Independent Regulatory Board of 5

– Administrative Law Judges• General Counsel

– Represents NLRB– Chief Prosecutor

• Regional Directors– Represent NLRB in Representation cases– Represent General Counsel in ULP cases

Representation ProcessSection 9

• Who is in the collective bargaining unit?• How does Union become representative?

– Election by employees– Recognition by employer (card check/EFCA)

• Employer can later challenge by election petition• Employees can later challenge by decertification• Section 8(f) pre-hire agreements in construction

• Election issues and certification by NLRB• Duty to bargain

Unfair Labor PracticesSection 8(a) – Employer ulps

(1) Alleged in all charges, violation of Section 7(2) Employer-run union(3) Discrimination for union activities(4) Retaliation for going to NLRB(5) Failure/refusal to bargain

Section 8(b) – Union ulps(1)(A) Failure to fairly represent(1)(B) Interference with employer representatives(2) Causing employer to discriminate(3) Refusal to bargain(4) Secondary boycott(5) Excessive fees for members(6) Featherbedding(7) Picketing to force unionization

Section 8(e) – Hot Cargo agreements

ULP Process• NLRB has exclusive jurisdiction• Six month statute of limitations• Charge with NLRB Regional Office• Investigation• Settlement or Hearing• ALJ Decision and Exceptions to NLRB• NLRB decision and enforcement• Local or D.C. Circuit Court of Appeals then Supreme

Court

ULP Remedies• Reinstatement• Backpay• Interest on backpay• Notice posting• Section 10(l) injunctions • Section 10(j) injunctions• Section 10(k) to resolve jurisdictional disputes

Quo Vadis NLRA• The Bad News for NLRB

– Unionized workforce at all-time low– Supreme Court blows to NLRB– EFCA/Notice Posting failed

• The Good News for NLRB– Social media– Internal investigations– At will clauses in Employee Handbooks– Indian Gaming– Football players and franchisees

Employment at WillCan it be changed?

Confidential InformationWhat is a secret?

Investigators Beware!

Social MediaEverybody’s a Publisher!

Protected Concerted Activities NLRB and Social Media

Traps for Unwary• Pre-emption under Section 301

– NLRB exclusive jurisdiction– CBA exclusive jurisdiction– Exceptions

• Arbitration– 14 Penn Plaza and courts’ view– What about arbitration in non-union sector?

• EEOC v. Waffle House• At will arrangement

NLRB v. Noel Canning

What is a recess for the Recess Appointments Clause?How long does it have to be?When is the Senate in session?Is a pro forma session legitimate?What is a vacancy for the Recess Appointments Clause?Must it occur during a recess to be legitimate?What was the effect of the decision?