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Background of the NLRA

The NLRA’s Application

Rulemaking and Case law Changes

Common NLRA Questions

The National Labor Relations

Act: What you need to know

An Overview of the NLRA

• The National Labor Relations Act

– 1935 New Deal legislation

• Deemed constitutional in 1937

– Created an agency called the National Labor Relations Board (“NLRB”)

– Gave employees rights with a caveat: They had to work together to be protected


• Section 7

– 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 . . . .


• Employees are protected under the Act if they:

– Act in concert

– For mutual aid and protection

• These rights are called “Section 7 Rights”


• 1935 NLRA

– It is the policy of the United States to encourage the practice and procedure of collective bargaining

• 1947 Taft-Hartley Amendments to the NLRA

– Included a “free speech clause” in section 8(c)

– Allowed ULPs against unions

– Allowed right-to-work legislation by states

– Prohibited secondary boycotts

• The NLRA is at war with itself

National Labor Relations Board: Two Main Roles


• The “Board”

– 5-member quasi-judicial Board

– Members nominated by President and confirmed by Senate

• Traditional 3-2 balance

– Sets national labor policy through

• Case decisions

• Agency rule making


• General Counsel Peter B. Robb

– Appointed by President Trump

– Term expires November 2021

– Management-side labor attorney


• Office of the General Counsel

– Enforcement arm of the Agency

– Appointed by the President to a 4-year term, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases

– Oversees regional offices

National Labor Relations Act: Jurisdiction

• Applies to the private sector

• “Employee” is defined broadly

– Includes job applicants and individuals whose work has ceased because of a labor dispute or unfair labor practice

– Excludes independent contractors and supervisors

National Labor Relations Act: Jurisdiction

• An employee is a “supervisor” if:– The employee can hire, transfer, suspend, lay off, recall,

promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action;

– The employee’s exercise of such authority is not merely routine or clerical nature but requires the use of independent judgment; and

– The employee’s authority is held in the interest of the employer

Concerted Activity

What is Concerted Activity?

• Section 7 is broadly interpreted

– Approaching a supervisor to discuss discipline

– Negotiating a collective bargaining agreement

– Requesting to bargain with an employer

– Approaching a supervisor about wage increases

Varieties of Concerted Activities

• Two or more employees acting together at the same time and place

• Single employee acting alone to induce group action

• Single employee acting as a representative of at least one other

• Single employee acting as a continuation of prior concerted activity

Direct Examples of Concerted Activity

• EEO officer’s protest to employer about refusal to grant employee maternity leave, after discussion with employee and agreement that failure to grant paid leave was unfair. Boese Hilburn Electric, 313 NLRB 372 (1993)

• Two employees’ refusal to reinstall aircraft engine part without a maintenance release. Springfield Air Center, 311 NLRB 1151 (1993)

• Employee who wrote letter to newspaper criticizing employer engaged in protected concerted activity because letter was intended to elicit community support for a strike. Alaska Pulp, 296 NLRB 1260 (1989)

Direct Examples of Activity Not Found Concerted

• Employee’s act of complaining to state agency about alleged unsafe working conditions not protected because it was not done in concert with other employees. Oakes Machine, 288 NLRB 456 (1988)

• Employee’s refusal to perform an assignment based on his belief the equipment was unsafe. Unprotected because he acted alone and no other employee had complained. Goodyear Tire, 269 NLRB 881 (1984)

Rulemaking Initiatives and Changes to NLRB Case Law

Rulemaking Initiatives and Changes to NLRB Case Law

• Changes to election procedures

– AKA Quickie Elections

• Bargaining unit changes

– AKA micro-bargaining units

• Joint-employer status: Browning-Ferris

• Handbook guidance post-Boeing

Election Procedure Changes

• New election procedures were implemented April 15, 2015– The time between the filing of an election and the election decreased

– Employers required to post a notice of election

– Communication rules changed

• Employers must provide the union with personal email addresses and phone numbers, within two business days of the scheduling of an election

– Many changes to pre- and post-elections rules

Election Procedure Changes

• Data from election procedure changes show

– The time between election petition and election decreased from an average of 38 days to 23 days

– Union win rates increased, but not dramatically

• 2012: 65% 2013: 63% 2014: 68% 2015: 69%

• 2016: 72% 2017: 71%

• In December 2017, the NLRB sought public comments on the election changes

– April 2018: 7,000 comments

Bargaining Unit Changes: Micro-bargaining Units

• Bargaining unit

– A grouping of two or more employees aggregated for the assertion of concerted activity

• To determine the bargaining unit

– Only an appropriate unit is necessary

– “Community of interest”: common supervision, interchange of employees, and geographic considerations to be considered


• Micro-bargaining units– Broadly, bargaining units in many industries are

often “wall-to-wall” units

– “Micro-bargaining units” began appearing in 2011 via Specialty Healthcare• If the union can show the petitioned-for unit meets the

standard of being an appropriate unit, the burden shifts to the employer to prove it is not

• To challenge, the employer has to show employees in a larger unit have an “overwhelming” community of interest with the proposed smaller unit


• In December 2017, the NLRB reversed Specialty Healthcare in PCC Structural

– The NLRB eliminated the “overwhelming” community of interest test, returning to the traditional test

• But, in May 2018, a Regional Director recognized a micro-bargaining unit at a Boeing facility in South Carolina

Joint-employer status: Browning-Ferris

• Generally, parent companies are not responsible for NLRA infractions of their subsidiaries

• The entities may nonetheless be considered a “joint employer” and are jointly responsible for NLRA violations if the parent company exercises direct control over terms and conditions of employment


• Before deciding Browning-Ferris, the Board invited comments on the joint-employer standard

– Unions: Time to evaluate joint-employer status in this increasingly common setting: workplaces where employers use labor contractors or staffing agencies to supply workers

– Employers: Current standard works; a new standard would impose obligations on business


• Browning-Ferris is decided in August 2015

– The Board eliminated the “direct control” requirement that the parent entity must have the ability to influence the terms and conditions of work of the related entity, but that it also exercised that right

– “Indirect-control standard”: If the parent entity has the ability to influence the terms and conditions of employment, that is enough


• December 2017, the Board reversed Browning Ferris in Hy-Brand Industrial Contractors

– “Control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

• February 2018, Hy-Brand is reversed and Browning-Ferris reinstated

– A potential conflict of interest tainted the Board’s vote in Hy-Brand

Handbook Guidance Pre-Boeing

• 2015 General Counsel Memorandum GC 15-04

– Analyzed common workplace policies and handbook statements to determine if they would be reasonably construed to interfere with rights under the Act

– Many employers modified their handbooks and policies in accordance with GC 15-04

Handbook Guidance Post-Boeing

• The December 2017 Boeing decision.

– The Board announced a new standard for analyzing whether a work rule violates employees’ rights under the Act

• In June 2018, the General Counsel issued a new guidance memorandum, GC 18-04, that further explains the new Boeing standard

• GC 18-04 is available online


• Three categories of employment policies, rules, and handbook provisions

– “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”



– “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”



– “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”

Common NLRA Issues

Common NLRA Issues

• The Act Applies to non-union employers

– 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 . . . .

The Act’s Application to a Non-Union Employer: Case Study

• Staff sends an anonymous letter to a business owner asking for reconsideration of the owner’s plan to cut wages by 10% and suggesting alternate ways to save money

• The letter was signed “The Concerned Staffers”

• The owner met with individual employees to determine who wrote the letter

• One employee was terminated; the other was disciplined


• The result

– The Board ordered full back pay and offers of reinstatement

– The Board noted the letter was respectful and civil

• Concerted activity can lose its protection if the employees use sufficiently “opprobrious, defamatory, or malicious language.”


• This case illustrates classic protected, concerted activity under the NLRA

• “Please take our suggestions under advisement”

• The letter was signed “The Concerned NUC Staffers”

• Critique the language that is used. Grammar matters!

• “The Illegality of Bad Grammar” by Laura J. Cooper

Common Questions I Receive

Common Questions I Receive: Right to Work

• What exactly is a right-to-work law?

– A “union security agreement” is a contractual requirement that employees pay dues or dues equivalent as a condition of employment

• Employees may object, and opt to pay only that share of dues used directly for representation

– Under the 1947 Taft-Hartley amendments, states are allowed to pass legislation, called right-to-work laws, prohibiting union security agreements

Common Questions I Receive: Union Formation

• How is a union formed?

– Election

– Card Check

– Gissel bargaining order

– An employer signs a pre-hire contract with the union. This is exclusive to the construction industry

Common Questions I Receive: Types of NLRB Elections

• Representation Elections (RC): Do the employees want union representation? If more than one union contesting, which one?

• Decertification Elections (RD): Do employees currently represented by a union no longer desire union representation?

• Employer-Filed Petitions (RM): Does the employer have “good-faith uncertainty” the union no longer represents a majority of the employees?– Unilateral withdrawal versus RM election

• Deauthorization of union security authorization (UD): Do the employees which to rescind the union security clause?

Common Questions I Receive: Decertification

• What can an employer do when approached about decertification?

– Decertification: when employees vote out a union

• Provide “ministerial aid” that is free of coercive conduct

• Supplying factual information and editorial assistance is ok

• Allowing work-time solicitation is generally not ok

• Providing financial assistance is not ok

Common Questions I Receive: Decertification

• If approached about decertification

– Do not initiate, assist, or propel the decertification effort

– Speak with managers to educate them and to have a common message

– Funnel all inquiries to one manager, to ensure the message is proper

Common Questions I Receive: Janus v. AFSCME

• What does the 2018 Janus v. AFSCME case do?

– Janus is a public-sector case that overruled Aboodv. Detroit Board of Education

– Abood was a 1977 U.S. Supreme Court case that held the First Amendment was not violated by requiring employees to pay fees to a union as a condition of employment

– Janus essentially created a constitutional right-to-work provision in the public sector

Common Questions I Receive: Weingarten Rights

• Do my employees have Weingarten rights?

– National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975)

• An employer is required to accept an employee’s request for the presence of a union representative or other third party at a meeting which the employee reasonably believes may lead to discipline


• First question: Is the employer unionized?– Currently, non-union employees do not have

Weingarten rights. But, this has changed a few times over the years.

– The Board has explicitly stated that either interpretation is a “permissible interpretation of the Act.”

– The U.S. Court of Appeals for the D.C. Circuit has ruled the Board has the authority to extend Weingarten rights to non-union employees.


• What triggers Weingarten rights?

– An employee’s request need only be sufficient to put the employer on notice of the employee’s desire for union representation.

• I would like someone that could explain to me what was happening

• Should I have someone in here with me, someone from the union?

• Do I need a witness?


• What the law requires if a Weingarten request is made at a unionized workforce.

– (1) grant the request for representation;

– (2) dispense with or discontinue the meeting; or

– (3) offer the employee the choice of continuing the interview unaccompanied by a union representative

• Penalty: Reinstatement, backpay, lost benefits, tax consequences for lump sum backpay award, costs of employee’s job search, attorney fees

Common Questions I Receive: Company Email and Union Activity

• Can employees use company email for union activity, such as organizing? – Right now, yes

• In 2007 in Register Guard, the Board held employers can prohibit employees from using employer email for non-business purposes– An employee does not have a legal right to use the

employer’s email system for section 7 activities because the employer has the right to control its property and manage its business to maintain productivity


• In December 2014, the Board overruled Register Guard in Purple Communications

– There is a presumption that employees who already have access to the employer’s email system may use it during non-work time for section 7 activities

– Exception: If the employer can show that “special circumstances” justify specific restrictions


• Purple Communications may be overruled

– On August 1, 2018, the NLRB invited briefs on whether the Board should overrule Purple Communications

– Commentators predict the Register Guard standard will be reinstated

Questions?

Seth A. ThompsonVogel Law Firm

200 North 3rd Street, Suite 201P.O. Box 2097

Bismarck, ND 58502701.258.7899

701.258.9705 (Fax)[email protected]

These materials do not constitute, and should not be taken as legal advice as to any particular situation. Although every effort has

been made to insure the accuracy of these materials and comments at this seminar, neither the presenter nor the Vogel Law Firm assume any responsibility for any person’s reliance on written

or oral information disseminated at or in connection with this seminar. Each participant should independently verify the accuracy of these materials and any statements at this seminar to determine

the legal consequences of any given situation.

Vogel Law Firm 2018©

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