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Sec. 7: gives certain rights to workers (can do without ER retaliation)
o Right to self organization (unions/labor orgs)
o Right to collectively bargain through those orgs
o Right to engage in other concerted activities for purpose of collective bargaining or
other mutual aid and protection
 Not necessarily only labor unionizing. Ex: a spontaneous walkout without
forming any kind of org
o Right to refrain from these activities (not allowed to be coerced into unions)
 NOTE: protects acts, not statuses (like being a union member, etc)
 Only protects concerted (group) activity, not individual
Protected (NLRA gives right to do it) vs non protected activities
o Protected: ER can’t punish/discipline or deter
o Non protected: ER may punish or deter (NOTE: this doesn’t mean it’s illegal to do tho)
Protected activities:
o 1) must be concerted (in a group)
 Performed in unison or is mutually contrived or agreed upon. Multi people must
be involved in performing the activity in the moment, or workers talk about
doing something together in the future even if later only one worker ends up
doing it
 Two exceptions (stiuations where individual actions still satisfies the concerted
element):
 A) an individual acts in a way to try to induce some concerted action. Ex:
try to organize a union by walking into workplace and announces to
everyone, even if everyone ignores them. (Mushroom Transportation
Doctrine)
 B) Individual action that has been authorized or planned by a group
(Meyers Doctrine). Ex: group says Mike should go do that, and he does
 Alleluia Cushion issue: Individual action that may benefit the group but was
never authorized by the group is not concerted. Ex: One lone worker thinks
whole group would benefit from something, so they go and do it without any
coordination.
o 2) must be to achieve a certain protected end (has a goal which NLRA protects)
 OK ends: better wages, hours, benefits, work conditions, mechanisms of
enforcing discipline in the workplace, wanting turkeys at christmas
 2 types of tricky cases:F
 A) workers who are seeking ends not directly related to the terms and
conditions of employment
 B) worker actions that relate to terms and conditions of employment
but it’s unclear that the particular worker is seeking an end that is for
mutual and protection
o Fresh n Easy case:
o 3) have to use protected means to achieve that goal
Must be an EE to be protected by NLRA and have these rights to unionize. Other workers don’t
get these
o
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EE classification: (section 2(3))
 NOT EE’s:
 Agricultural workers
 Domestic workers (works in people’s homes)
 Government workers
 Railroad and airline workers
 Independent contractors
 Supervisors
 Categories of EE’s excluded by board via caselaw, though not by the act:
 Managers
 Currently included by board/courts based on intent of act, but disputed:
 trainees (teaching assistants, apprentices, medical residents)
 leased employees (an EE who is fulll time EE of a temp agency but put
on site of a different ER). Temp workers are EE’ of the temp agency, but
uncertain if also EE’s of other ER where they are placed.
o Democratic boards say yes, Republican boards have said no just
EE’s of the temp agency
 Generally college athletes are not EE’s
Times when NLRA imposes a legal obligation on ER to bargain with the union
o 1) Representation election
 When the board conducts a representation election in which a majority of
workers within a bargaining unit vote to have a union represent them
o 2) when an ER voluntarily agrees to bargain with the union after being presented with
proof that a majority of workers within a bargaining unit want the union to represent
them
o 3) board issues a bargaining order as a remedy for egregious employer unfair labor
practices during a union organizing campaign.
 This is when during an election campaign within a bargaining unit, if ER
ccommits especially bad ULP's ,board can issue a bargaining order as a remedy
for this and hence imposing a legal obligation on ER even though there's been
no election and ER has not voluntarily agreed to bargain.
Determining a bargain unti
o Bargaining Unit:
 = a group of workers defined by some common characteristic or set of
characteristics that the union represents or wishes to represent
 It’s the district where a representation election is going to take place
Exclusive representation
o Section 9
o A union will represent EE’s in a bargaining unit if a majority of workers in that unit want
them to represent them  they become the sole /exclusive rep (they rep all the
workers in the unit, even those opposed to the labor union)
 1) no direct dealing. Once a union elected by a majority of workers, other
workers can’t make deal directly with an ER and ER can’t attempt to negotiate
direct with workers must be through the union
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 2) Minority unions are not allowed.
Representation Elections:
o Under what circumstances will the regional counsel hold a representation election for a
particular bargaining unit?
 If Sec 9 c 1 triggered
 Board will investigate a petition if it has reasonable cause to believe that
a question of representation exists (a signal that there is an issue of
workers wanting to be represented)
 Question of rep exists if more than 30% of workers in bargaining units
sign an authorization card, and the union delivers these to the board
NLRA remedies: for when there’s an ULP found aka violation of the act
o “Laboratory conditions doctrine”
 Board at discretion can decide to re-run a representation election in a unit if it
feels the conditions surrounding the election are such that workers have been
unable to exercise free choice. An election re-do under clean conditions like a
lab. Even if no ULP committed by ER, if there’s behavior that is still coercive and
affected the election results, board can decide to re-do election.
 Post notice of violation.
 If there’s an ULP, board can require ER to post a notice saying they
found them to be in violation of the act
 Cease and desist orders
 Board can order these if ULP’s or if there’s neutral work rules that
violate republican aviation balance
 Status quo ex ante
 Main remedy under the act
 Obligation of ER who committed ULP to make the parties injured whole
in such a way as if the ULP had never happened in the first place.
 can involve reinstatement of job if fired, receiving back pay for time not
employed, etc. if demoted, can be put back in old position.
 Sometimes full status quo ex ante remedy is not possible, bc property is
destroyed or not expected to re-open a whole factory that got closed,
etc. usually the case when Er’s made dramatic changes to the business
 Strengthening of self-help remedy
 Workers when involved in labor dispute will frequently engage in a
strike. There’s weapons ER’s can use to try to end strikes. ER’s have
many fewer weapons they can use when a strike is in response to a ULP
as opposed to when it’s an economic strike (when workers are
exercising bargaining power to get a better collective bargaining
agreement). EE's can affectuate a remedy through their own self help
and ULP strike is one method of affecting that remedy.
 Gissell bargaining order
 If a ER did severe ULP’s in context of a union representation campaign,
board can order ER to bargain with the union regardless of the outcome
of the election. Did so many ULP’s that a fair election isn’t possible.
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Board can seek injunctions for ongoing ULP’s. (10j)
 Ex: if a worker was fired for unionizing, worker could bring case to board
and board starts adjudication and in meanwhile board can do an
injunction to reinstate the fired worker. This is sort of an alternative to
status quo ex ante.
 Sought when a status quo ex ante remedy not sufficient. For when it’s
hard to remedy a violation after it is committed
o None have effect of explicitly deterring ULP activities
Bargaining process:
o Statutory requirements:
 Creates statutory duty to bargain for ER’s (Sec 8 a 5)
 Creates statutory duty to bargain for labor unions
 Defines what collective bargaining is (8 d)
 meet and confer in good faith with respect to wages, hours, and other
terms and coonditions of employment, but such obligation does not
compel either party to agree to a proposal or require the making of a
concession
 On both Er and union:
 statutory obligation to meet and confer
 statutory obligation of good faith
o OK to not make certain concessions and not make certain
proposals though, still can be GF
 Voluntarism:
 Duty to meet and bargain over terms and conditiosn of employment,
BUT courts and board wont judge teh substance of the bargain (the
fairness of the terms of the collective bargaining agreement)
 Won’t judge the nature of the K.
 Can’t argue the other side did not argue in good faith bc the other side
got a really good deal bc more power
 It’s more procedural, like did you follow the steps of bargaining, not
whether or not the K itself that comes out of it was fair
 board will NOT judge the good faith of the bargaining based on the
tactics that employers or unions use away from the bargainig table.
(NLRB v Insurance Agents International Union)
o ER’s can lock wrkers out, hire replacements, workers can strike,
slow down, and these are all fine and not indicative of GF. The
focus foor GF is instead on the process, not the outcome of the
bargaining or the economic coercion that ER’s and unions use.
Economic weapons:
o Examples:
 Strikes
 Replacement of striking workers by ER’s
 Lockouts (ER not allowing workers to work)
 Employer initiated ouster
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Limited set of cirucmstaces under which an ER can attempt to get an
election to decertify a union
 Picketing and other forms of communicatinos with workers (asking people not
to cross picket line, asking workers not to work, etc)
 Boycotts
How does a ER continue to keep business going while there is strike:
o Managers and supervisors (typically don’t strike)
o Some EE’s cross the picket line and work anways
o Hire temporary replacements
o Hire permanent replacement workers
Permanent replacement workers:
o ER's can permanently repalce strikign workers if the strike is an "economic strike" but
NOT if it's an "unfair labor practice strike"
o permanent replacement does not ocurr until a replacement worker is actually hired
 If workers on strike and ER says I’m permanently replacing you and the workers
say they surrender, they get their jobs back.
o Permanent replacement workers remain EE’s under the act with all the protections that
entails
 Discrim hence among or between workers would violate act
o permanently replaced workers remain members of the bargaining unti for a year after
they've been replaced
o permanently replaced workers retain "laidlaw rights." these are the obligation fo ER to
offer a replaced worker her job back when the worker who replaced that worker leaves.
this is another way being permanently replaced is different than being fired. after the
strike ends, individual workers have the right to be rehired when the worker who
replaced them leaves.
o NOTEs:
 workers striking in response to ULP's can only be temporarily replaced.
permanent replacement only allowed for economic strikes, and parties dont
know which type of strike it is until a claim is brought.
 workers who refuse to cross a picket line at a business where they are not an
employee may only be temporarily replaced
 ex: one EE of X company goes to deliver package at Y company but sees
picket line and refuses to cross. it is protected to refuse to cross the
picket line in solidarity. Can’t be fired or permanently replaced. But can
be temporarily replaced (hire someone else to do that job and not
paying you for that time you didn’t do it)
 strikes can convert from economic strike to ULP strikes
 notice the makeup of the post-replacement bargaining unit. If ER hires 5
permanent replacement workers after some refuse to cross picket line, now the
bargaing unit includes both the replacement workers and the originals.
 unions are obligated to represent permanent replacement workers the same as
anyone else in the bargaining unit (still the exclusive representative)
I don’t’ think this is on the exam….last asynch lecture
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Individual and the Collective Process (relations between unions and its members and those in
unit who don’t want to be union members)
o These issues stem from 2 NLRA requirements:
 Doctrine of exclusive representation: once union chosen by majority of
members in a unit, union is required to represent all members of the unit
regardless of if the members even want them
 Majoritarianism: requires 50% plus 1 of workers in a unit to be in favor to have
that union become the representative
o Issues:
 Whether the union will represent the interest of the members in the unit
equally and fairly when some members of the unit are not in the union?
 Does union treat old vs new members differently
 Free Rider Problem - Because the act requires union to represent all members
fairly and equally even if some members don’t want the union, it creates this
issue: if a worker in unit joins union they pay membership dues, but some are
still required to be represented by the union but they don’t have to pay union
dues.
o Duty of Fair Representation doctrine: (board/courts)
 Requires union to treat all members of the bargaining unit equally /fairly
NOTHING ON ARBITRATION ON THE EXAM