Introduction and Overview of the National Labor Relations Act Tom O’Connor Office of Assistant General Counsel for Labor and Pension Law (GC-63) 5-18-15

Introduction and Overviewof the National Labor Relations Act

Tom O’ConnorOffice of Assistant General Counsel for

Labor and Pension Law (GC-63)

5-18-15

Office of the AssistantGeneral Counsel for

Labor and Pension Law

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The National Labor Relations Act (NLRA)

Congress deemed passing the NLRA important to reduce industrial strife which in turn would help maintain full economic production

· Define and protect the rights of employees and employers · Encourage collective bargaining · Eliminate practices by labor and management that are

harmful to general welfare· Minimize disruptions of the economy

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Defines the rights of employees to organize and to bargain collectively through representatives of their own choosing, or not to do so.

Sets up a secret ballot election procedure to ensure this free choice.

Defines certain employer and union practices that constitute Unfair Labor Practices (ULPs).

GC-63What Does the NLRA Say?

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Filing of a ULP allegation is called a “charge.” “Any person” can file a charge.

A request for an election is called a “petition.”

NLRA is not self-enforcing; processes are begun only with the filing of a charge or petition with the proper Regional office.

GC-63 How Is the NLRA Enforced?

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Question 1:

A request for an election is called a _________:

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Charge

Petition

Application

Assertion

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WRONG ANSWER!

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Department of Energy

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CORRECT!

“Early retirement incentives that are funded through contractor pension plans will continue to be unallowable . . . .”

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How Is the NLRA Enforced?

The NLRB General Counsel staff (GC) investigates and prosecutes ULPs and conducts the secret ballot elections.

The National Labor Relations Board (Board) decides cases involving ULP charges (generally after an administrative law judge (ALJ) decision) and determines representation questions posed by the GC Regional Offices.· Board’s decisions are not self-enforcing; enforcement is

through the US Courts of Appeals· Board is entitled to substantial deference, including as to

changes in policyTalk Topic

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Section 7 of the NLRA provides that employees have the right –

· to self-organize, to form, join, or assist labor organizations,

· to bargain collectively through representatives of their own choosing,

· to engage in other concerted activities for the purpose of collective bargaining or other mutual aid protection, and

· 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 8(a)(3).”

GC-63Section 7

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Examples of Section 7 Rights of employees under NLRA

· Company employees forming or attempting to form a union· Joining a union· Assisting a union to organize the employees of an employer· Going out on strike to secure better working conditions· Picketing, such as during a strike or for the purpose of

“truthfully advising the public”· Refraining from activity on behalf of a union· Discussing wages, hours, working conditions

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Section 7(continued)

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The Act does not cover

· Supervisors –

– A supervisor is any individual with the authority to act in the interest of the company, or can cause another employee to be hired, transferred, suspended, laid off, recalled, promoted, discharged, etc., or can effectively recommend such to a superior. Typically requires the exercise of some independent judgment, rather than routine or clerical in nature.

· State employees

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Question 2

True or False? Assisting a union to organize the employees of an employers, going out on strike to secure better working conditions, and picketing are all examples of Section 7 rights guaranteed by the NLRA.

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TRUE

FALSE

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WRONG ANSWER!

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<< Try again

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CORRECT!


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Basic NLRA Concepts:Collective Bargaining

Duty to bargain collectively –

· Requires an employer and the representative of its employees to meet at reasonable times, to confer in good faith about certain matters (wages, hours, working conditions), and to put into writing any agreement reached if requested by either party.

· Also requires parties to confer in good faith on any question arising under a CBA.

Duty to bargain is imposed on both employers and unions.

Does not mean parties must agree to other party’s proposals or to make a concession to the other.

A party cannot unilaterally terminate or modify a CBA.

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Section 9(a) provides that the employee representatives that have been “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining...” (emphasis added)

· A bargaining unit can be a group of two or more employees who share a substantial community of interest.

· Section 9(b)(3) prohibits certification of a mixed guard & non-guard unit, but parties can voluntarily bargain in such a mixed unit.

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Basic NLRA Concepts: TheBargaining Representative

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NLRB Certification of a Bargaining Representative

Most common method is through secret-ballot election.

· Conducted after the filing of a petition for election by employees or a labor organization on their behalf (or even by an employer).

· Petition must be supported by substantial number of employees – normally a 30% “showing of interest” by members of the proposed unit.

Alternatively, employer may voluntarily recognize without a Board election upon showing of majority support.

Unions can also be decertified.

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RepresentativeStatus

Contract Bar Rules – In order to stabilize the employer-union relationship, no election during the term of a valid collective-bargaining agreement (NTE 3 years).

Certification Bar: Certification of representation is binding for 1 year after certification and commencement of bargaining

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Selecting the Bargaining Representative

(continued)

An election will be set aside where there is evidence of confusion or fear of reprisal interfering with the employees’ freedom of choice. For example:· Threats of loss of jobs or benefits by either the employer or the union;· Granting of benefits, or promises to grant benefits, to influence the vote;· Employer or Union making “campaign speeches” before an assembly of

employees within 24 hours of the election;· Inciting racial or religious prejudice via inflammatory campaign appeals;· Threats or the use of physical violence or force;· The occurrence of violence or other trouble that prevents a fair election.

** While the RD or NLRB is deciding objections, an employer unilaterally changes terms and conditions of employment “at its peril” – if the union is certified, the employer will have committed a ULP by making such changes.

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Labor Agreements in the Construction Industry

Contrast Section 8(f) of the NLRA: an employer engaged primarily in the building and construction industry can sign a bargaining agreement recognizing a union as the exclusive representative of its employees before employees are hired and without the union having been designated as the representative of its employees.

· CBA may be signed before employees are hired in the construction industry, whereas outside the construction industry a CBA can only be signed after employees are hired and a majority of employees have evidenced support for a union.

· An employer may walk away from the bargaining relationship upon expiration of the CBA.

· Section 8(f) status may be converted to Section 9(a) status upon appropriate showing of employee support.

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Question 3

True or False? CBA may not be signed before employees are hired in the construction industry.

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TRUE

FALSE

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WRONG ANSWER!

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<< Try again

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CORRECT!A CBA may be signed before employees are hired in the construction industry.

“Early

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Unfair Labor Practices (ULPs)

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Section 8(a)(1)

Section 8(a)(1) – Prohibits interference, restraint, or coercion of employees in the exercise of the rights guaranteed in Section 7.”· Includes a broad prohibition from interfering with employees’ rights to

organize, to form, to join, or assist a labor organization, to bargain collectively, to engage in concerted activities for mutual aid or protection.

Examples Include:· Threatening the loss of jobs or benefits if employees join a Union;· Threatening to close a plant if a union organized the employees; Spying

or pretending to spy on union gatherings;· Granting wage increases deliberately timed to discourage forming a union.

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Section 8(a)(2)

Section 8(a)(2) – Prohibits domination or illegal assistance or support of a labor organization

· Domination: When the employer interferes with the formation of a union, and/or has such a financial stake in its formation that the union is considered more of a company creation.

· Illegal Assistance and Support: Support of a union that doesn’t rise to the level of domination, but is still unlawful.– Example: An employer may not provide financial support to a union,

whether by direct payments or by indirect financial aid.

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Section 8(a)(2)(continued)

Examples –

· When rival unions are competing to organize an employer’s employees, the employer is forbidden to:– Give the union it favors any privileges that it denies the other union;– Allowing only one of several competing unions to solicit on company

premises during working hours;– Recognize either union once it knows that one of the unions has filed

a valid petition with the Board requesting a representation election.

· Pressuring employees to support a union financially

Discussing safety, health or other terms or conditions of employment with employees selected by the employer

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Section 8(a)(3)

Section 8(a)(3) – Prohibits discrimination against employees for the purpose of either encouraging or discouraging union membership.

Prohibited discriminatory actions may include:– Refusing to Hire;– Discharging;– Demoting;– Less desirable job or work assignments; or– Withholding Benefits

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A union business representative introduces himself to the contractor’s human resources manager and says that the union is trying to organize the contractor’s employees. He also mentions that employee Joe Smith is circulating union petition and is handing out a one-page flyer after employee working hours in parking lots. The next day, the HR manager fires Smith and tells security to ban the Union’s business representative from the site and make sure that no flyers are distributed on employer property. Do you have any concerns with the way the HR handled this situation?

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Situation #1

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Does not limit an employer’s right to discharge, transfer or layoff an employee for genuine economic reasons, or for such good cause as disobedience or bad work, regardless of the employee’s support or non-support of a union.

Where an employer disciplines an employee both because the employee has violated a work rule and because the employee was engaged in protected activity under Section 7, the burden is on the employer to show it would have taken the same disciplinary measure even absent the protected activity.

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Section 8(a)(5)

Prohibits employer refusal to bargain in good faith about wages, hours and other conditions of employment with the representative selected by a majority of the employees in a unit appropriate for collective bargaining.

Employers must refrain from unilaterally changing terms and conditions of employment, on matters over which they have a duty to bargain.· Example of a Violation: Announcing a wage increase or change in

benefits without consulting the employees’ representative (absent clear and unequivocal waiver).

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True or False? When an employer disciplines an employee both because the employee has violated a work rule and because the employee was engaged in protected activity under Section 7, the burden is on the employer to show it would have taken the same

disciplinary measure even absent the protected activity.

Question 4

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TRUE

FALSE

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WRONG ANSWER!

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<< Try again

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CORRECT!


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Duty to Bargain: The employer must “meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party.”

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“Mandatory” bargaining subjects include all terms and conditions of employment, such as –

wages, rates of pay, and bonuses; hours of employment; other conditions of employment; pensions and other retirement benefits for current employees; grievance procedures; health and safety practices; seniority; discharge procedures; layoff; recall; discipline; and union security.

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“Mandatory” bargaining subjects may also include subcontracting, relocation, and other operational changes.

“Permissive” bargaining subjects – lawful subjects parties are free to bargain about and agree on, but may not insist to impasse over.· Basic change in operation or a change in the company's scope or

direction; retirement benefits of current retirees· May not force other party to bargain over permissive subjects, or

insist to impasse over permissive subjects

Regardless of whether or not the employer is required to bargain about a decision itself, it must bargain about the decision’s effects on employees.

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Duty to Supply Information: The employer has a duty to supply, on request, non-confidential information that is “relevant and necessary” to allow the employees’ representative to bargain intelligently and effectively with respect to wages, hours and other conditions of employment.

· Example: Refusing to supply the union with cost data concerning a group insurance plan that covers represented employees.

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Question 4:

Which of the following would be considered a permissive bargaining subject?

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Wages

Union security

Health and safety practices

Changes in retirement benefits of current retirees

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WRONG ANSWER!

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<< Try again

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CORRECT!

“Early retirement incentives

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Successor Employers: An employer who acquires the operations of another (for example a DOE M&O contractor that succeeds to an existing facility contract) may succeed to its predecessor’s bargaining obligation with the union that represented the predecessor’s employees if – · It continues the business in substantially the same form, and · A majority of the employees it hires were employees of the

predecessor.

Duty of Successor Employers:· need not adopt a predecessor’s CBA and is ordinarily permitted to

set initial T&Cs of employment · It is appropriate for a new contractor to initially consult with union

when the contractor is a “perfectly clear” successor (i.e., shows intent to hire all predecessor employees)

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Union Unfair Labor PracticesSection 8(b)

Section 8(b) – Most of the ULPs for Employers have parallel prohibitions for Labor Organizations.

Examples include:· Section 8(b)(1)(A) – Restraint and Coercion of Employees: Forbids a

labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed in Section 7.”

· Section 8(b)(2) – Causing or Attempting to Cause Discrimination: Prohibits a labor organization from causing an employer to discriminate against an employee in violation of Section 8(a)(3).

· Section 8(b)(d) – Refusal to Bargain in Good Faith: Makes it illegal for a labor organization to refuse to bargain in good faith with an employer on matters pertaining to wages, hours or other conditions of employment.

Our primary concern is employer unfair labor practices

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Remedies Under the NLRA

Primarily = to remedy or prevent ULPs; not punitive.

Reinstatement, backpay, notice posting are typical remedies

Section 10(j) – authorizes federal courts to grant temporary injunctive relief in to stop ULPs pending completion of case before ALJs and the Board, where – · There is “reasonable cause” to believe a violation has

occurred, and· Injunctive relief is “just and proper”

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EMERGING ISSUES AND RECENT DEVELOPMENTS IN NLRA LAW

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DEFINING THE EMPLOYER STATUS – Background

Fundamental underlying concept of “Employer” –

“Employer” defined in Sec. 2(2) of NLRA: “includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States … or any labor organization (other than when acting as an employer)…” (emphasis added). Drawn from common law.

Various NLRA doctrines on defining what is the “employer” under the NLRA: single employer, alter ego, joint employer, and successor employer

If an entity other than the nominal employer is found to be an employer, that entity may be obligated to bargain, abide by a CBA, and otherwise liable for ULPs

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DEFINING THE EMPLOYER STATUS – Background

Alter ego: typically when one employer entity effectively ceases to perform an operation and a second entity has begun to perform it (“disguised continuance” of the old employer)· Where two entities have substantially the same management, business

purpose, operation, equipment, customers, supervision, and ownership, and where there is an attempt to obligations under the NLRA

· Most important factor generally is intent to evade obligations under the NLRA

Single employer: where two or more nominally separate employers are engaged in simultaneous operations that the NLRB will treat as one · Where common ownership/financial control; common management;

interrelation of operations, and integrated control of labor relations· Most important of these is common ownership

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DEFINING THE EMPLOYER STATUS – Joint Employer

Evolving standard for finding a Joint Employer –

Codetermination of terms and conditions of employment

Direct Control over essential terms and conditions of employment Current standard is whether a putative joint employer’s control over

employment matters is “direct and immediate,” looking to the “actual practice” of the parties rather than any unrealized contractual control that the putative joint employer may possess.

Current standard also requires actual control to be “substantial” and not just “limited and routine” “Substantial” requires showing that a putative joint employer tell employees

HOW to perform work rather than just what/where/when to do it.

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Joint Employer(continued)

Browning-Ferris, Case (32-RC-109684) – The NLRB GC argued that requirement of direct control over essential t&c is too narrow a standard, fundamentally undermining NLRA policy to encourage stable and meaningful collective bargaining

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(continued)

Browning-Ferris: NLRB GC’s brief argues for a return to “traditional” standard, looking at the totality of the circumstances, in particular whether:

an entity could be a joint employer if it exercised “direct or indirect” control over working conditions;

had the unexercised potential to control such conditions; or where “industrial realities” otherwise made the entity

essential to meaningful bargaining.

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(continued)

Browning-Ferris: brief notes circumstances where a client can influence a supplier firm’s bargaining posture by threatening to terminate a contract if the supplier fails to curtail wages/benefits

In such a case, GC said the client effectively controls economic benefits of supplier’s employees

Employees should expect that their bargaining representative can address their employment conditions with the entity that realistically has power to implement them, otherwise bargaining is futile

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(continued)

Browning-Ferris: Key areas of concern with General Counsel’s position –

Franchise situations Small Business situations Contracting/Subcontracting situation

This has significance for DOE contractors, which sometimes subcontract or outsource functions integral to their business

But, no discussion of government agencies as contractors – And, that would raise very different concerns under the

NLRA

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EMPLOYEE USE OF EMPLOYER E-MAIL

Purple Communications, 361 NLRB No. 126 (12/11/14) held that employees with access to company email can use it, on non-working time, for union organization and Section 7 protected activities, such as discussing wages, hours and working conditions

· Union had failed in attempt to organize the employer’s employees· Purple Communications noted how the use and importance of e-

mail had increased in intervening 7 years as a means of communication

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True or False? Employees with access to company email can use it, on non-working time, for union organization and Section 7 protected activities, such as discussing wages, hours and working conditions.

Question 5:

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TRUE

FALSE

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WRONG ANSWER!

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<< Try again

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CORRECT!


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EMPLOYEE USE OF EMPLOYER E-MAIL

Purple Communications (cont.)

· Applies to employers that have chosen to give employees email access

· Employer may limit use for reasons of “production or discipline,” but Board noted this exception would be applied rarely where employer can demonstrate that use would interfere with the email system's efficient functioning”

· Employers may still monitor e-mail so long as within its normal monitoring procedures (e.g., not increased in response to or after a union organizing campaign commences)

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RETIREE HEALTH BENEFITS and the NLRA: M&G Polymers, LLC v. Tackett

(1/26/15)

CBA stated retiree medical benefits provided to retirees at no cost “for the duration of this Agreement and thereafter”

Circuit Court below (6th Cir.): when retiree medical benefits are set forth in a CBA, the benefit vests for life absent explicit language that the benefits will end (“Yard-Man presumption”)

S. Ct: Yard-Man presumption does “not represent ordinary principles of contract law. Yard-Man distorts the attempt to ascertain the intention of the parties by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.”

Remanded back to 6th Circuit to apply normal contract principles without the Yard-Man presumption

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REPRESENTATION CASE RULE CHANGES

Effective April 14, 2015, comprehensive NLRB resource page: http://www.nlrb.gov/what-we-do/conduct-elections/representation-case-rules-effective-april-14-2015

“designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions”

NLRB will investigate the petitions to determine if an election should be conducted and will direct an election, if appropriate.

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http://www.nlrb.gov/what-we-do/conduct-elections/representation-case-rules-effective-april-14-2015



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REPRESENTATION CASE RULE CHANGES

Rule expedites process:

· pre-election hearing to begin 8 days after a hearing notice is served

· Employer must provide list of prospective voters with info like job classification and work location to NLRB and other parties one business day before pre-election hearing – Voter list also to include personal phone numbers and e-mail

addresses (if available to employer); previously only included name and home address

· post-election hearing 21 days after tally of ballots

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Wrap up

If you have questions on specifics as they relate to your site and your contractors or unions, please call the individual site leads at GC-63 or the NNSA-GC. If you have forgotten who that is, please check the listing at

http://energy.gov/gc/leadership/contact-us/contacts-assistant-general-counsel-labor-and-pension-law

Questions?

GC-63



Documents

Introduction and Overview of the National Labor Relations Act Tom O’Connor Office of Assistant General Counsel for Labor and Pension Law (GC-63) 5-18-15