CHAPTER 16 Labor Relations Law

INTRODUCTION This chapter discusses the coverage and application of the National Labor Relations Act (NLRA), which governs labor relations in the United States. The chapter explains who is eligible to be a member of a union, and it outlines the procedure whereby eligible employees can decide whether they wish to be represented by a particular union, types of employer conduct that are unlawful under the NLRA, including interference with union-organizing activities and failure to bargain in good faith. It compares lawful and unlawful strikes and outlines the rights of strikers to reinstatement.. The chapter concludes with a discussion of unlawful union conduct, including coercing employees to join a union or to remain on strike.

NLRA HISTORY  Prior to the mid-1930s labor demands were largely ineffective.  Norris-LaGuardia Act - generally prohibited injunctions in labor disputes.  Wagner Act and Taft-Hartley Act - gave labor greater bargaining power by allowing organization and unions.  Landrum-Griffin Act - addressed corruption in union leadership

SCOPE OF THE NLRA  Covers all enterprises involved in interstate or foreign commerce and generally only covers working in the United States.  Supervisors - NLRA grants rights only to Employees, not Employers.  Independent Contractors - not covered by NLRA because they are not employees under the common law “right to control” test (see Chapter 5).  Agricultural Laborers - specifically excluded under NLRA.  Professional Workers - developing area with HMO’s. Physician bargaining bills introduced in various states.  Temporary Workers - possible under NLRA under certain conditions.

NLRA Case 16.1 Synopsis. Beverly Enterprises v. NLRB (4th Cir. 1999). Beverly Enterprises operated Carter Hall Nursing Home in Dryden, Virginia, which served fifty patients. Direct patient care was provided by six licensed practical nurses (LPNs) and twenty-one nursing assistants. The LPNs assigned the nursing assistants to patients, directed their work, and taught them nursing procedures; the nursing assistants reported directly to the LPNs. The LPNs implemented the schedule formulated by the Director and Assistant Director of Nursing, and they filled out daily assignment sheets for the nursing assistants. LPNs did not directly discipline the nursing assistants, but they could send them home for misbehavior and provide input for disciplinary decisions made by the Director and Assistant Director. For two-thirds of the time during the week, the LPNs were the most senior representatives of Beverly Enterprises present at Carter Hall and, therefore, were responsible for ensuring the operation of the nursing home. CONTINUED 

NLRA (CONT’D) Case 16.1 Synopsis. (CONT’D) The United Mine Workers of America petitioned the National Labor Relations Board to allow the union to represent a unit of approximately forty employees at Carter Hall, including the six LPN nurses. Beverly Enterprises objected to the inclusion of the LPNs, asserting that they were supervisors. After concluding that the LPNs’ functions were routine and essentially clerical in nature, the NLRB ordered the bargaining with the union, but Beverly refused. ISSUE: Are the LPNs who direct the work of nursing assistants “supervisors” under the National Labor Relations Act and, as a result, not entitled to bargain collectively? HELD: Reversed. The court reversed the NLRB’s decision. Because the LPNs were supervisors, they could not be included in the proposed union. To be a supervisor, an employee must meet the following criteria: (1) the employee must be authorized to perform or recommend at least one of the twelve duties enumerated in the statute; (2) the employee’s authority must promote the interest of the employer; and (3) the exercise of the employee’s authority must require the use of independent judgment.

REPRESENTATION ELECTION PROCEDURES  Employees decide if they want union representation for collective bargaining.  Filing a Petition - interest by at least 30% of employees who submit NLRB union authorization cards.  Appropriate Collective Bargaining Unit - NLRB looks at the kind of work performed, quality of the employees, the frequency of contracting, geographic proximity, and the wishes of the employees.  Scope of Unit - generally it is agreed upon by the union and the Employer; if no agreement can be reached, the NLRB conducts a hearing.  Conduct of Election - regional NLRB office conducts it.  Objections - losing party may file for a new election.  International Considerations

UNFAIR LABOR PRACTICES BY EMPLOYERS  Interference with Protected Activities (“Unfair Labor Practices”) - Section 8(a)(1) of the NLRA makes it illegal for an employer to take coercive action against employees with regard to union activities.  View from Cyberspace: Union Access to the Cyber WaterCooler. Use of company and chatrooms.  Domination of a Labor Organization - Employers may not dominate or assist a labor organization.  Discrimination against Union Supporters - Employer cannot discriminate against an employee to encourage or discourage union membership.

UNFAIR LABOR PRACTICES BY EMPLOYERS  Discrimination against Employees Who File Charges.  Failure to Bargain in Good Faith. NLRA requires Employers to bargain in good faith but does not compel either party to agree to a proposal or make concessions. – Implementation After Impasse. – Bargaining Subjects. Requires Employers to bargain over certain subjects.  Public Policy. Courts will not enforce labor agreements that are contrary to public policy.  Presumption of Majority Support -Union certified by NLRB enjoys irrebuttable presumption of majority support for one year.

IMPLEMENTATION AFTER IMPASSE Case 16.2 Synopsis. Visiting Nurse Services v. NLRB (US 2000). VNS provides home-based nursing home services. When the collective bargaining agreement between VNS and the Service Employees International Union expired on October 31, 1992, the parties attempted to negotiate a successor agreement. VNS offered several written proposals, but they were only partially accepted by the union. Specifically, the union objected to VNS’s proposal for a change from a weekly to a bi-weekly payroll system. Although the parties were unable to reach an agreement on either of these proposals VNA implemented conditions that applied to staff. The union filed a charge with the NLRB. The NLRB found that VNS violated the NLRA by unilaterally implementing the proposed changes while it was still bargaining with the union and without reaching a general impasse. VNS appealed. CONTINUED 

Case 16.2 Synopsis. (Cont’d). ISSUE: Can an employer who has not reached a general impasse on a package of collective- bargaining issues take unilateral action on particular issues after declaring an impasse was reached on those specific issues? HELD: AFFIRMED for NLRB. Because the parties had not reached an impasse on the agreement as a whole, VNS had to bargain to impasse before making a unilateral change. The NLRB’s decision was upheld. IMPLEMENTATION AFTER IMPASSE

BARGAINING SUBJECTS Case 16.3 Synopsis. First National Maintenance Corp. v. NLRB (US 1981). First National was engaged in the business of providing housekeeping, cleaning, maintenance, and related services for commercial customers. Following a dispute with a nursing home over fees, First National terminated its contract with that customer and discharged the employees who worked there. The union representing those employees requested bargaining over the decision to terminate the contract. After First National refused, the union claimed that the employer’s refusal breached its duty to bargain in good faith. ISSUE: Does an Employer need to bargain over a decision to shut down part of its business for purely economic reasons? HELD: For First National. Congress did not intend that the union would become an equal partner with the employer in the running of the business enterprise. The Supreme Court ruled that an employer is not required to bargain over every business decision that it makes.

PUBLIC POLICY Case 16.4 Synopsis. Eastern Associated Coal Corporation v. UMW (2000). Eastern and the United Mine Workers of America were parties to a collective bargaining agreement requiring binding arbitration of disputes. The agreement provided that Eastern could not discharge employees without “just cause.” Smith was employed as a truck driver for Eastern subject to Department of Transportation (DOT) regulations requiring random drug testing of workers performing “safety-sensitive” tasks. After Smith tested positive for marijuana for the second time, Eastern sought to terminate his employment. The union challenged Eastern’s right to fire Smith, and the dispute was submitted to binding arbitration. CONTINUED 

PUBLIC POLICY Case 16.4 Synopsis. (Cont’d) The arbitrator ordered (1) Smith’s suspension without pay for approximately three months; (2) Smith’s continued participation in a substance-abuse program; (3) random drug testing of Smith; (4) Smith’s obligation to provide Eastern with a signed letter or resignation to take effect if Smith tested positive within the next five years; and (5) Smith’s reimbursement of expenses to Eastern for costs of the arbitration. Eastern sought to vacate the decision on the grounds that it violated the public policy against the operation of dangerous machinery by workers who test positive for drugs. ISSUE: Is an arbitration award ordering an employer to reinstate an employee truck driver who twice tested positive for marijuana unenforceable as a violation of public policy? HELD: for Union. The Supreme Court held that considerations of public policy did not require the court to overturn the arbitration award. Eastern did not have just cause to terminate Smith.

LAWFUL AND UNLAWFUL STRIKES  Economic Strikes. Employer faced with an economic strike may hire permanent replacements for striking employees and is not required to rehire the striking employees.  Unfair Labor Practice Strikes - workers have a right to be reinstated.  Unlawful Strikes. – Organizational Strikes. – Recognitional Strikes. – Secondary Boycotts.  Economic Perspective: Decline of Pattern Bargaining

UNLAWFUL STRIKES Case 16.5 Synopsis. Bob Evans Farms v. NLRB (7th Cir. 1998). Diane Gorrell was first assistant manager at the Bob Evans restaurant in East Peoria, Illinois. She was in charge of the night shift and had a close relationship with the employees she supervised. Gorrell attended amanagement meeting with Dave Ward, the Bob Evans area director while she was intoxicated and terminated. As she left the restaurant, she told several employees that her employment had just been terminated. Within a few minutes, fifteen employees had walked off the job and gathered outside the restaurant to encourage prospective customers to dine elsewhere. Subsequently, all but one of the employees offered to return to work. Bob Evans refused to reinstate them because they had abandoned their jobs, leaving the restaurants in dire straits on what was characteristically one of its busiest shifts. In addition, two employees, fed up with the difficult working conditions resulting from the walkout, quit, thereby exacerbating an already chaotic situation. CONTINUED 

Case 16.5 Synopsis. (Cont’d) Gorrell filed an unfair labor practice charge with the NLRB on behalf of the employees who had gone on strike. The NLRB ordered Bob Evans to offer the employees full reinstatement to their former positions, to compensate them for any losses sustained, and to remove any evidence of the incidence from their files. Bob Evans appealed. ISSUE: Was the walkout a reasonable means of protest protected by the National Labor Relations Act? HELD: NLRB decision overturned. The court denied enforcement of the Board’s order. Bob Evans had no obligation to reinstate the employees to their jobs. UNLAWFUL STRIKES

NON-STRIKE RELATED UNFAIR LABOR PRACTICES BY UNIONS  Coercion of Employees - Section 8(b)(1)(A) of the NLRA prohibits unions from coercing employees to join the union or to support its activities.  Inducing Employer Discrimination against Non-Union Workers – Under Section 8(b)(2) of the NLRA, a union may not cause or attempt to cause an employer to discriminate against an employee on the basis of union affiliation or activities.  Failure to Bargain in Good Faith – Section 8(b)(3) requires the union to bargain in good faith with the employer.  In Brief: Unfair Labor Practices.

THE RESPONSIBLE MANAGER Building Good Labor Relations Managers should always be attentive to workplace morale and strive to keep open the lines of communication with employees. They should not threaten adverse treatment if employees support a union, interrogate employees about their union activities, promise employees benefits if they abandon the union, or spy union activities.

REVIEW 1. Historically, what caused the rise of strong unions? 2. What caused union membership to decline? 3.What might cause a resurgence in union membership? 4.Are unions obsolete? What about conflicts with unions in a “right to work” state (e.g., Texas)?