Section 2(3) Definition of Employee

Report
NLRA S.2(2): Definition of
Employer: Statutory
Exclusions
• Federal Govt. or Govt. Corporation (U.S.
Postal Service is Included)
• State or Local Govt. or Political Sub.
• Railway Labor Act Employers (Rail,
Airlines, Fed Ex.)
• Labor Organizations in Representative
Capacity
NLRA S. 2(2): Def. of
Employer: Judicial Exclusions:
• Firms with Close Relationship to Foreign
Government
• Foreign-Flagged Vessels with Foreign
Crews
• Parochial Schools [Catholic Bishops case]
NLRA S. 2(3): Def. of
Employee: Statutory
Exclusions:
•
•
•
•
•
Ag Laborer [Holly Farms case]
Domestic
Employee of Parent or Spouse
Indpt. Contractor
Supervisor (S.2(11) [Health Care & Ret.
Corp. & Kentucky River cases]
• Employees of R.L.A. Employer
NLRA S. 2(3): Def. of
Employee: Judicial Exclusions:
• Managerial Employees [NLRB v. Textron
case, Yeshiva case]
• Confidential Employees [Hendricks Cty.
Rural Elec. Coop. & Meenan Oil Cases]
Union Representation Rights
• Voluntary Recognition -- Authorization
Cards; S. 8(a)(2) concerns
• Consent Election -- Expedited Process
• Formal Election -- Formal Hearings on
Issues
• Bargaining Order Remedy for Unfair
Labor Practice [Kinney Drugs case]
Bargaining Unit Determination
Issues
• Craft vs. Industrial Unit
– Industrial Preferred
– Craft -- Skilled Trades & Construction Industry
• Single vs. Multi Employer Unit
– Single Employer Preferred
• Single vs. Multi Plant Unit
– Single Plant Preferred
– Utilities and Transportation Industry: System-Wide
Unit
Bargaining Unit Determination:
Statutory Provisions
• S.9(b)(1): Professionals included with nonprofessional only if majority of professionals agree
• S.9(b)(2): Can’t refuse to sever craft unit because of
inclusion in prior unit, unless majority craft employees
vote against separate unit
• S.9(b)(3): Can’t include guards with other
employees; union for guards only
• S.9(c)(5): extent of union organizing can’t be
controlling factor in bargaining unit determination
Bargaining Unit Determination:
Community of Interest
• working conditions, wages, hours, nature of
duties, skills, training or qualifications
• geographical and physical proximity
• history of prior bargaining
• similarity of employer administrative units
• functional integration, frequency of
interchange
• desires of employees
Bargaining Unit Determination:
Health Care Institutions
• NLRB Approach [Am. Hosp. Assoc. v. NLRB]
–
–
–
–
–
–
–
–
physicians
registered nurses
other professionals
medical technicians
skilled maintenance workers
clerical workers
guards
other non-professionals
• No Unit < 6 employees
– Prior Units or Smaller units -- use Community of Interest
Craft Unit Severance
[Mallinckrodt Chemical Works
Case]
• non-repetitive functions, functionally-distinct
department
• history of collective bargaining: with the
employer, within the industry
• maintained separate identity despite inclusion
in larger unit
• degree of integration of employer production
process
• qualifications of union and experience in
representing craft workers
UNFAIR LABOR
PRACTICES
• S. 7: Protected Activity
• All employees under the NLRA, whether
unionized or not
• Protected Activity Requirement:
– concerted
– for mutual aid & protection
– NLRB v. City Disposal Systems
UNFAIR LABOR
PRACTICES by
EMPLOYERS
• S. 8(a)(1) -- interference, coercion or restraint
of employees’ S.7 rights
• S. 8(a)(2) -- domination or support of labor
organization
• S. 8(a)(3) -- discrimination in terms or
conditions of employment to
encourage/discourage union membership
• S. 8(a)(4) -- reprisals
• S. 8(a)(5) -- failure to bargain in good faith
UNFAIR LABOR
PRACTICES by UNIONS
• S. 8(b)(1) -- interference, coercion or
restraint of employees’ S.7 rights
• S. 8(b)(2) -- getting employer to
discriminate in t & c of employment to
encourage/discourage union membership
• S.8(b)(4) -- secondary picketing
• S. 8(b)(7) -- recognitional picketing
• S.8(e) -- hot cargo clause
DUTY TO BARGAIN IN
GOOD FAITH
• S. 9(a) -- if union has majority support, it
is exclusive bargaining agent
• S. 8(d) -- must bargain over wages, hours,
and other terms and conditions of
employment
• Scope of bargaining: mandatory,
permissive and illegal subjects
• Duration of Duty to Bargain
• Remedies for Breach of Duty to Bargain

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