BUS 372 wk 3 Disc.1 (DO NOT CHANGE THE PRICE) IF YOU DO I WILL NOT SEND A HANDSHAKE.

97 5 The Rights of Employees Under the National Labor Relations Act Bill Clark/Getty Images Learning Objectives After completing this chapter, you should be able to:

• Summarize the three major rights of employees under Section 7.

• Evaluate unfair labor practices of employers, including Weingarten rights and domination.

• Analyze the unfair labor practices of employers and labor organizations.

• Describe the major components of the National Labor Relations Board and its role in resolving unfair labor practices. sea81813_05_c05_097-122.indd 97 12/10/14 3:34 PM Section 5.1 Section 7 Rights Introduction This chapter sets out in detail the rights of employees under Section 7 of the National Labor Relations Act (NLRA). There are four guarantees of that law: the right to self-organization, the right to collectively bargain, the right to strike, and the right to refrain from union activ - ity. With those rights as a foundation, we will explore the unfair labor practices managers tend to commit in violation of Section 7 and how they can avoid these. Then we will see how the National Labor Relations Board (NLRB) addresses unfair labor practices by looking at its structure and investigative processes. The chapter concludes with an overview of alternative dispute resolution, another process that may resolve a labor dispute, if use of that process is included in the collective bargaining agreement.

5.1 Section 7 Rights Section 7 of the National Labor Relations Act gives all employees, whether union members or not, the right to organize and participate in union activity , and Section 8 states the employer’s obligations to provide those rights to employees. In this chapter we will assume that a union exists at the place of business and discuss management’s obligations regarding all employees.

Section 7 grants the following to workers: • the right to “self-organization, to form, join, or assist labor organizations.” This right includes joining a union (whether the union is recognized by the employer or not) as well as going out on strike to secure better working conditions; • the right to “bargain collectively”; and • the right to refrain from activity if the employee declines participation in union activity. Each section will be discussed separately, with an emphasis on the rights of employees under the NLRA and the associated duty of the employer once a union is in place.

The Right to Self-Organize and to Form, Join, or Assist Labor Organizations Section 7 begins with the pronouncement that “employees shall have the right to self- organization, . . . and to engage in other concerted activities for the purpose of collective bar - gaining or other mutual aid or protection” (29 U.S.C. §§ 151–16, as amended, 2012). But what are concerted activities? Basically any interaction between two or more employees to achieve a common goal is a concerted activity. The most obvious are those involving the forma - tion of a union, but concerted activities are not limited to union formation. They may be innocu - ous, such as having lunch with other employees to complain about working conditions, asking coworkers for assistance in raising a sexual harassment complaint against an employer ( Fresh and Easy Neighborhood Market , 2014), or writing e-mails to supervisors questioning or criticiz - ing a new policy. Even the actions of one employee have been held to be concerted activity when that employee acts on behalf of others; for example, one worker may complain to management about a working condition that affects multiple employees ( KNTV , 1995). sea81813_05_c05_097-122.indd 98 12/10/14 3:34 PM Section 5.1 Section 7 Rights Therefore, concerted activities must be clearly defined, because there are many types of employee activities that are covered by Section 7 but are not union activities and apply even if the employees are not members of a union. Thus, concerted activities can be a minefield for managers. Employers typically run afoul of this section when they punish or fire an employee for the activity. The employee then reports the action to the National Labor Relations Board, which holds a hearing to determine if the employer violated Section 7 (a procedure that will be discussed in detail in the next section). No matter the outcome, hiring an attorney to rep - resent the business at this hearing is expensive and time consuming. Therefore, being aware of and on guard to prevent such violations can save the business valuable time and money. You Be the Judge : The Case of the Employee With the Hat Managers are sometimes surprised to learn that the National Labor Relations Act is relevant to a wide variety of seemingly unrelated situations at work. Take for example the following case.

Suppose that your workplace had a dress code that included uniforms and regulation-issued headwear, such as what nurses wear. One day an employee has a bad hair day and wears a hat to cover it up, which violates the company’s uniform policy. The employee’s supervisor takes her aside and tells her that she cannot wear a hat outside of the required uniform. The employee complains that she is being singled out, because other employees are wearing pieces of clothing or have tattoos that also violate the employer’s dress policy. The employer issues the employee a letter of insubordination.

The employee next brings a camera to work and starts taking pictures of all employees whom she considers in violation. The employer orders the employee to stop taking pictures. The employee complains to other employees about the employer’s unfairness, and she is ultimately fired.

Discussion Questions 1. What is the significance of the employee’s ability to prove that other employees were treated differently than she was? 2. Do you see any concerted activity in this example that is protected by the NLRA? Explain. 3. If the employee complained to the National Labor Relations Board, what do you think was the result and why? (Based on NLRB v. White Oak Manor , 2011.) HOLDING: The National Labor Relations Act states that employees will be protected when they engage in conduct for the purpose of “mutual aid and protection.” This means that employees will be protected when they “seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee–employer relationship.” The issue in this case, “the employer’s dress code, is a condition of employment which employees may seek to improve and such efforts qualify as protected activity under the NLRA” (NLRB v. White Oak Manor, 2011).

“Not only must the activity be protected, but it must be the product of concerted action. Con - certed activity embraces the activities of employees who have joined together in order to achieve common goals” ( NLRB v. White Oak Manor , 2011). As a result, the employee’s complaints about the employer’s disparate enforcement of its dress code are protected under the NLRA. The employee’s activity was protected because she sought to improve terms and conditions of employment; the action was concerted action. The employ - ee’s attempt to document the problem by taking pictures is similarly protected conduct. sea81813_05_c05_097-122.indd 99 12/10/14 3:34 PM Section 5.1 Section 7 Rights Concerted Activity on the Internet The advent of the Internet has introduced a new dimension to the discussion about what con - stitutes a concerted activity. Suppose, for example, an employee rants about his company on Facebook, whether during or after work. Can his employer demand that he stop complaining about the company on websites or even fire the employee for such conduct?

This was at issue in the 2014 case Three D, LLC, d/b/a Triple Play Sports Bar and Grille v. San - zone (2014). When employees received their final tax statements for the year, they discovered that they owed taxes to the government because their employer had incorrectly calculated their withholding amounts. The employees were angry that they had to pay more in taxes.

First, the employees complained directly to their supervisors. When they were not satisfied by the answers they got, they went on Facebook and posted comments that derided their superiors’ intelligence and management skills. “Maybe someone should do the owners of Tri - ple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . Wtf !!!!” ( Three D, 2014). When the supervisors read the posts, they fired the employees, who proceeded to file a com - plaint with the NLRB. The judge found that the Facebook discussion between four employees was concerted activity and protected because it involved workplace complaints about tax liabilities. Because there were multiple employees involved in the discussion, the activity was concerted ; and because the discussion concerned work, it is protected. This is equivalent to four employees standing around the water cooler complaining about their pay. That too is concerted and work related and therefore protected. The only difference here is that the con - versations took place on the Internet ( Three D, 2014). Since the NLRB determined that the employer was at fault, the board ordered the sports bar owners to reinstate the employees and pay all of their back wages. Not only did this tremen - dously disrupt the business, but the owners also spent a lot of time and money having to defend their actions to the board.

Given this outcome, employers may wonder: Can employees say whatever they want on pub - lic websites? The answer is no; there are limitations. If the language is disparaging or defama - tory, or if it results in the loss of discipline in the workplace, then it is not protected by the NLRA. Although the employees from Triple Play used one expletive to describe management, this was not serious enough to undermine discipline in the workplace. If, however, the work - ers had put on Facebook that the “food is rotten” or that the managers were “convicted fel - ons,” these untruths would not be protected employee activity.

Businesses routinely have employee handbooks that set out the rules of conduct. At a mini - mum, every business should have a policy regarding work-time use of the Internet, which should state that employees should have no expectation of online privacy while at work.

Employers should be especially careful, however, not to include language that prohibits what would be considered concerted activity in these handbooks. For example, stating that employees may not discuss the business or complain about their jobs on the Internet would be a violation of Section 7 (Baumgartner, 2014). sea81813_05_c05_097-122.indd 100 12/10/14 3:34 PM Section 5.1 Section 7 Rights You Be the Judge : Endicott Interconnect Technologies v. NLRB , 453 F.3d 532 (2006) Karen Lecraft Henderson, Circuit Judge This case involves a technology company, EIT, which purchased a computer circuit board man - ufacturing facility from IBM. EIT agreed it would continue to produce the circuit boards for IBM. After the sale of the business was complete, EIT laid off 200 employees, or approximately 10% of its overall workforce.

The layoffs were big news, and the local newspaper went to the plant to interview employees— including one Mr. White, also a union member, who told the reporter, “There’s gaping holes in this business” ( Endicott Interconnect Technologies v. NLRB , 2006). On the same day that White’s comments appeared in the paper, EIT’s president had a phone conversation with an IBM vice president. The IBM vice president was very concerned about Mr. White’s comments and was worried that EIT would not be able to provide the number of computer circuit boards it had promised to IBM.

The president of EIT, William Maines, assured the IBM vice president that there was no reason for concern. Maines then met with White and expressed displeasure over his comments, which he claimed “disparaged the Company in violation of the company Handbook.” He “threatened to terminate White if it happened again” ( Endicott Interconnect Technologies v. NLRB , 2006). White said he was “on board and it would not happen again.” Two weeks later, White posted a message on a website criticizing the company, stating that Maines lacked “good ability to man - age” EIT, was causing the business to be “tanked,” and was going to “put it into the dirt.” White was fired and subsequently brought the case before the NLRB, which was then appealed to court (based on Endicott Interconnect Technologies v. NLRB , 2006). Discussion Questions 1. What is the difference between the statements made in the Triple Play case compared to this case? Do you feel that the statements in this case should be protected concerted activity? Explain. 2. Does it make any difference to the outcome of the case that the company was struggling to get a foothold in the marketplace? HOLDING: “The effect of the disloyal statements, made by an experienced insider at a time when EIT was struggling to get up and running under new management, is obvious from the immediate reaction of IBM’s vice president, who telephoned Maines concerned about EIT’s continuing ability to supply IBM’s circuit board needs. The critical nature and injurious effect of White’s comments alone gave EIT cause to immediately discharge him” (Endicott Intercon - nect Technologies v. NLRB, 2006).

Nonetheless, Maines gave White a second chance, and White agreed not to repeat such behav - ior. Yet 2 weeks later he did just that when he caustically attacked EIT’s management online. “The communications here constituted ‘a sharp, public, disparaging attack upon the quality of the company’s product and its business policies’ at a ‘critical time’ for the company” ( Jefferson Standard , 1953). The disloyal, disparaging, and injurious nature of White’s attacks on the com - pany “ha[s] deprived [him] of the protection of that section, when read in the light and context of the purpose of the Act” ( Endicott Interconnect Technologies v. NLRB , 2006). Therefore, it was concluded that EIT did not violate the NLRA when it discharged White. sea81813_05_c05_097-122.indd 101 12/10/14 3:34 PM Section 5.1 Section 7 Rights The Right to Strike, Boycott, and Hot Cargo Agreements Closely aligned with the right to self-organize is the right to strike. Section 7 grants employ - ees the right “to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection,” and Section 13 provides that “nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike or to affect the limitations or qualifications on that right” (29 U.S.C. § 157, 1947). This section examines limitations to the right to strike and explains the limitations of boycotts and hot cargo agreements. These limitations include: 1. strikes must have a lawful objective and be carried out in a lawful manner, 2. workers often waive the right to strike in the collective bargaining agreement, 3. employers may hire replacements if their employees strike, 4. secondary boycotts are outlawed, and 5. hot cargo agreements are mostly outlawed. Chapter 2 described strikes such as the Great Railway Strike of 1877 and the Great Southwest Strike, which were effective in convincing management to listen to employee concerns. Strikes are much less useful today, however, for a number of reasons. One is that although the NLRA protects the right to strike, it limits how the strike may take place and mandates that it must have a lawful objective and be carried out in a lawful manner. But what exactly is a lawful objective and manner? There is no easy answer to that question, since the legality of each strike depends on its circumstances. Often, the more complicated cases end up at the NLRB for review, or in court. Acts such as bribery, violence, or blocking public buildings would be deemed unlawful, as would threatening the health or safety of others. A second limitation is that many employees waive their right to strike in the collective bargaining agreement. To waive in law means to give up one’s rights; a waiver is a paper a person signs indicating that they forfeit their rights. Recall that the collective bargaining agreement is a contract that is negotiated between the union and management that sets out the terms and conditions of employment. Such a waiver would typically appear in this agreement, stating that the union will not go on strike in the event there is a dispute; if it does, it will be deemed in breach of the collective bargaining agree - ment. The courts have upheld such waivers because they are part of a negotiated agreement. The thinking behind this is that the “right to strike may be bargained away in exchange for an employer’s promise to bestow certain benefits, such as the promise of arbitration” ( Ryder Truck Lines Inc. v. Teamsters Freight Local Union No. 480 , 1983). A third problem with a strike, from labor’s point of view, is that employers have the right to hire replacement workers to take strikers’ place and thus not forfeit profits as a result of the strike, which effectively reduces the strike’s power. If a strike is called, the NLRA designates two differ - ent types of strikers. Depending on which classification one fits under, there may be ramifica - tions for reinstatement after the strike is over. The first type is an unfair labor practice striker . Wat ch T hi s What does a strike look like? The following video depicts an actual strike and highlights some of the workers who chose to go on strike in a New York City McDonald’s over the wages paid to employees. To view the video, visit ht tps://w w w.youtube.com /watch?v=e8f NkamFX9k sea81813_05_c05_097-122.indd 102 12/10/14 3:34 PM Section 5.1 Section 7 Rights These strikers consist of workers who believe their employer’s actions qualify as an unfair labor practice. In the event that these strikers make an unconditional offer to return to work, they are entitled to immediate reinstatement. This means that if the employer hired replacements while the workers were on strike, the replacements must be dismissed when the strikers return to work. The failure to reinstate these strikers constitutes a prohibited discrimination under the NLRA ( Citizens Publishing and Printing Co. v. NLRB , 2001). The second type of striker is an economic striker . These workers go on strike because their employer has not met their bargaining demands. In contrast to unfair labor practice strikers, economic strikers are entitled to be reinstated in their former positions only if no perma - nent replacements have been hired to replace them and their positions remain open. If the employer has hired replacements, then the strikers essentially lose their jobs ( General Inds. Employees Union, Local 42 v. NLRB, 1991). In addition to the diminished impact of strikes, tighter regulations regarding boycotts—or when customers refuse to purchase products from a particular company—have further dimin - ished unions’ powers. We will discuss two types of boycotts: One is a primary boycott because it is directly against the employer. A primary boycott is when workers of Company A go on strike and urge the general public to boycott, or not purchase, Company A’s products.

A secondary boycott is one in which “union conduct is designed to force a primary employer (the employer with which the union has a dispute) to force a neutral employer (an employer with which the union has no dispute) to cease doing business with the primary employer” (Teamsters, 2013). For example, a secondary boycott occurs when the employees of Company B engage in activities that result in a boycott of Company A. The employees of Company B may refuse to deliver boxes to Company A; as a result, Company A cannot ship any of its goods.

The boycott by employees of Company B impacts Company A, but the workers of B are not employed by A, so it is a secondary boycott. An informative video about secondary boycotts can be found at ht tps://w w w.youtube.com/watch?v=6_8G5SzWsZY . Section 8(b)(4)(ii) of the NLRA prohibits secondary boycotts, but two elements must be pres - ent in order for an action to qualify as a prohibited secondary boycott. The first requirement of this section is the actual boycott. The second is that the boycott must be used as a means to threaten, coerce, or restrain the secondary employer ( Limbach Co. v. Sheet Metal Workers Int’l Ass’n , 1991). This area of the law can be complex and perplexing, even to lawyers who practice labor law. For this reason, managers or labor organization officers making decisions regarding secondary boycott issues should seek legal advice and avoid guessing at the law’s meaning.

Another way union power has been diminished is through the widespread prohibition of hot cargo agreements, which are contractual provisions that prevent employees from handling products from struck or nonunion firms. However, the right to enter into hot cargo agree - ments still exists in the construction and garment industries.

Although workers have the right to strike, they may not use force or violence as a means to an end. The destruction of property or coercion of workers is prohibited. If the strikers’ activity also involves a boycott, and it seems as though a secondary boycott might also be planned, management should immediately consult a labor lawyer, since this area requires expert assistance. sea81813_05_c05_097-122.indd 103 12/10/14 3:34 PM Section 5.1 Section 7 Rights The Right to Engage in Collective Bargaining Collective bargaining is a topic that we will undertake in more detail in Chapter 7, but it will be partially discussed here because it is an important right of employees also granted by Section 7 of the NLRA. Collective bargaining occurs when the union and management meet to discuss the terms and conditions of employment. As previously discussed, the collective bargaining agreement defines the relationship between management and workers and is a legally binding agreement. Bargaining in good faith means that each party comes to the table with the intent to arrive at an agreement.

All employees, whether they support the union or not, are subject to the collective bargaining agreement regarding pay rates, wages, hours of employment, and other conditions of employ - ment. The person or group who will represent the employees at the bargaining table is known as the exclusive bargaining agent , meaning it is the one entity that is allowed to bargain on behalf of the union and its members. Once a union is recognized, the employer must bargain only with this agent. If the employer refuses to bargain with this entity, then the union can report the employer to the NLRB for committing an unfair labor practice. This means that the employer is accused of violating the National Labor Relations Act.

The aim of bargaining is to reach an agreement; either party can propose terms and condi - tions of their work environment, and the other side can accept or reject them. We will discuss the actual bargaining process in much more detail in Chapter 8.

How the Right to Refrain From Activity Is Related to Security Agreements and Right-to-Work States This section discusses a number of important and interrelated concepts: the right to refrain from union activity and how it is related to security agreements and right-to-work states.

Section 7 guarantees that all employees have the right to refrain from engaging in union activ - ity. This right was first granted in the Taft-Hartley Act in 1947. At that time, there had been a general outcry against closed shops, or workplaces that made union membership a condition of employment. Taft-Hartley explicitly outlawed compulsory union membership. Instead, it allowed union security agreements . These are contracts between a union and an employer in which they both agree that once an employee is hired, that employee must join the union.

Union security agreements play an important role in helping unions sustain themselves, because even if an employee does not want to participate in the union, he or she must pay dues, which keeps the union functioning. All employees are required to pay dues because all of them benefit from the union’s presence, which, at a minimum, ensures a collective bargain - ing agreement. Everyone must therefore contribute to the cost of making this benefit pos - sible. Although all employees are obligated to pay union dues and fees, they are not required to vote or otherwise participate in union activities. sea81813_05_c05_097-122.indd 104 12/10/14 3:34 PM Section 5.1 Section 7 Rights There is an important limitation to this, however. Section 7 also allows states to determine whether they will allow union shops at all. Indeed, 24 states have passed what are called right-to-work laws (see Figure 5.1) . In a right-to-work state , employers are not allowed to have union shops or union security agreements. There - fore, in these states employees not only have the right not to join a union, but security agreements are also pro - hibited, so in almost half the states, employees can opt out of joining the union and are not obligated to pay union dues if they are not a member. In other words, a right-to-work state means employees have the “right” to work without involving themselves in a union; a right over which there is a tremendous amount of debate. Wat ch T hi s To view a video with additional information on the right-to-work laws, visit http://www .youtube.com/watch?v=dnYvsAEsJwo To view a video that depicts some negative effects of right-to-work laws, visit h t t p : // w w w.youtube.com/watch?v=dRJOCnZTEiA Figure 5.1: Right-to-work states Employers in a right-to-work state are not allowed to have union shops.

Adams, B. As Mich. becomes 24th right-to-work state, is this the beginning of the end of union influence? TheBlaze. Adapted from http://w w w.theblaze.com/stories/2012/12/12/as-mich-becomes-24th-right-to-work-state-is-this-the-beginning-of-the -end-of-union-inf luence/# NE WY ID NV UT AZ TX OK AR LA MS AL TN NC VA SC GA FL KS IA IN MI SD ND MN WI OH PA NY VT NH MA RI CTNJ MD DE ME KY WV IL MO NM CO CA AK HI MT WA OR NE WY ID NV UT AZ TX OK AR LA MS AL TN NC VA SC GA FL KS IA IN MI SD ND MN WI OH PA NY VT NH MA RI CTNJ MD DE ME KY WV IL MO NM CO CA AK HI MT WA OR sea81813_05_c05_097-122.indd 105 12/10/14 3:34 PM Section 5.2 Employers’ Unfair Labor Practices 5.2 Employers’ Unfair Labor Practices This section will address two serious mistakes that managers can make when dealing with employees. The first is interfering with, restraining, or coercing employees in the exercise of their Section 7 rights by violating what is known as the Weingarten rule . Whether inten - tional or not, this violation is an unfair labor practice and can be easily avoided. The second is domination , which is more difficult to define and occurs when an employer takes over, or dominates, union activity so that it is no longer separate from the employer.

Interfering With, Restraining, or Coercing Employees In addition to interfering with employees’ ability to form a labor union (as was covered in Chapter 4), another significant judicial interpretation of Section 7 is known as the Weingar - ten rule, after the case NLRB v. J. Weingarten (1975), in which an employee, represented by a labor union, asked to have his union representative present at an investigatory interview.

The employee thought he was being called to his supervisor’s office to be fired. As a result, he asked to have a union member join him for the meeting, but the supervisor would not allow it.

Although the NLRA does not specifically address this situation, the NLRB did. They found that denying the presence of a union representative at the meeting amounted to the denial In the News: Right to Work Is More Than a Legal Issue Right to work might seem like a purely legal issue, but it is an economic one, too. In consider - ing where to build new plants, companies are keenly aware of which states have right-to-work statutes and which do not. Companies frequently opt for a state that has right-to-work laws to avoid unions. The thinking is that without a union presence, employers can pay lower wages.

One such company is Tesla Motors, which builds electric cars. It considered five states in which to house its new plant, or gigafactory, to manufacture its batteries, which will create 6,500 new jobs. Three of those are right-to-work states (Nevada, Arizona, and Texas) and two are not (California and New Mexico).

On September 8, 2014, Tesla announced that Nevada had won the contract. It is difficult to know the impact that the right-to-work status played in the decision, since the state offered extraordinary tax incentives to Tesla to locate there. But there is no doubt that the issue of right to work is a factor that will have an economic impact on states that may increase their likelihood of passing legislation to adopt right-to-work status.

Discussion Questions 1. If you were a legislator considering passing a right-to-work statute, would the fact that Tesla opened a plant in Nevada impact you in any way? Why or why not? 2. Read the following articles— ht tp://w w w.hcn.org/articles/nevada-wins-the-tesla -bat ter y-factor y-giga-race and http://w w w.kob.com/article/stories/s3548347.shtml# .VCrdKBbp_iE —which reveal there was more to Tesla’s decision than simply Nevada’s right-to-work legislation. What other factors led Tesla to choose Nevada as the place to house its plant? Do you think that right to work might have had no effect, considering these other issues? sea81813_05_c05_097-122.indd 106 12/10/14 3:34 PM Section 5.2 Employers’ Unfair Labor Practices of mutual aid or protection, which constitutes an unfair labor practice. Managers should be especially sensitive to this type of situation and when possible allow a representative to par - ticipate in the meeting.

Domination Domination, on the other hand, is when an employer interferes with the union. When an employer interferes with, or dominates, a union, union members become unable to freely voice their concerns in a way that is separate from their employer. The NLRA states that an employer may not “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” Dominating a labor organization may involve well-meaning actions on the part of an employer.

For example, suppose that an employer wishes to have better communication with his employees. To this end, he sets up workplace committees in which employees can voice their grievances and be heard by management. The employer chooses which employees will be on each committee, decides what topics they will discuss, and determines when the meetings will take place. These may appear to be the laudable actions of an employer that is sensitive to employee problems; but in the 1994 case Electromation Inc. v. NLRB , the NLRB characterized them as domination because the company defined the committee structures and committee subject mat - ters, appointed a manager to coordinate and monitor the committee meet - ings, structured each committee to include one or two management repre - sentatives, and permitted those managers to review and reject committee proposals before they could be presented to upper level management. ( Elec - tromation Inc. v. NLRB , 1994) Thus, the NLRB found the employer guilty of an unfair labor practice.

No matter how well intentioned an employer, the formulation and structure of such commit - tees in a unionized plant are problematic. The employer’s actions were: 1. “the creation of management, 2. whose structure and function are essentially determined by management, 3. and whose continued existence depends on management’s orders” ( Electromation Inc. v. NLRB , 1994). However, when employees themselves determine the formulation and structure of the orga - nization, domination is not established, even if the employer could potentially influence the organization’s structure or effectiveness.

Recognizing the Wrong Bargaining Representative Another violation of Section 7 involves an employer failing to recognize a particular group as the appropriate representative of the union. Suppose that one group of employees approaches the employer to say that they represent a majority of workers and that they wish to union - ize. Then 2 days later a group of different employees approaches the employer and says that sea81813_05_c05_097-122.indd 107 12/10/14 3:34 PM Section 5.3 Unfair Labor Practices of Labor Organizations they too represent a majority and would like to unionize. The employer recognizes the first group of employees as the majority’s representative, when in fact that group does not really represent the majority.

Can the employer be charged with a violation if he honestly believed the first group repre - sented the majority? Indeed; in the 1961 case International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB , the NLRB held that the employer interfered with the formation of a labor organization. The “employer recognized the exclusive bargaining representative of certain employees on a date when only a minority of those employees had authorized the union to represent their interests” ( International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB , 1961). The court said that although the employer had a good-faith belief that the union it rec - ognized represented the majority, the fact that it did not constituted an unfair labor practice (International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB , 1961). 5.3 Unfair Labor Practices of Labor Organizations Just as employers have a duty to comply with the NLRA, labor organizations must also abide by the rules set out in the act. Recall that employees are protected by Section 7, which guar - antees to them the right to unionize and affords them other protections from the unfair labor practices of employers. Employees also have protection from the unfair practices of labor organizations, which are outlined in Section 8.

Restraint and Coercion of Employees It is an unfair labor practice for a labor organization or its agents (1) to restrain or coerce (A) employees in the exercise of the rights guaran - teed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. (29 U.S.C.A. § 158 (b)(1)(A), 1935) The prohibition in the first section of this statute—the part about restraint and coercion—means that a labor organization is not allowed to use violence to induce employees to join the union or to join in a strike ( In re National Maritime Union , 1949). Likewise, unions are not allowed to threaten to retaliate against an employee if he or she files a grievance against it ( NLRB v. Union of Indus. Marine & Shipbuilding Workers , 1968). Employees have the right to freely decide whether to join a union, and this section attempts to prevent them from being subjected to wrongful, coercive techniques.

Sometimes, a behavior is not necessarily a violation on its face. For example, in a case involving members of the Teamsters union, a strike occurred at their place of work, and the employer hired replacements to do the strikers’ jobs. The Teamsters went to the place sea81813_05_c05_097-122.indd 108 12/10/14 3:34 PM Section 5.3 Unfair Labor Practices of Labor Organizations of business and videotaped the replacement employees, their vehicles, and license plates as they arrived for work in the morning. Although the act of videotaping on its own is not violent, coercive, or threatening, the court ruled that in this case, videotaping the replace - ment workers and their vehicles constituted an unfair labor practice because recording which replacement workers drove which cars—which could conceivably be used to follow or track them—was intimidating and threatening behavior ( General Teamsters, Warehouse - men and Helpers Union , 2000). In another case a large number of labor union members assembled outside a school at which rival unions were holding a meeting. One group of union members attempted to block the other group of union members, making it difficult for people to come and go.

When members of the rival unions did enter or exit, they had to pass a line of strikers alongside the exits who intimidated anyone who passed through. One union leader was physically attacked. There were also incidents following the meeting in which a building was burned, and this destruction was linked to the earlier incidents at the school. These behaviors were found to be coercive and a violation of the National Labor Relations Act (NLRB v. United Mine Workers of America , 1970), as was the destruction of property. The court found that these behaviors kept the employees from carrying out their normal work of the union by making it difficult to hold a meeting and were threatening to the workers; as a result, they violated the act.

The Rights of Unions and Employers The next section of the statute protects the right of a labor organization to write its own rules regarding union membership. While the labor organization may not engage in the activities described previously, it may have its own internal rules and sanctions. For instance, a union may fine members who do not attend meetings; it may also impose fines if members do not pay their dues. Many unions impose fines on members who cross a picket line during a strike (Emporium Capwell Co. v. Western Addition Community Organization , 1975). These types of sanctions are allowed under this section as long as the union can show that they relate to the internal governance of their organization.

The last section protects the employer’s right to choose its own representatives to engage in collective bargaining or to settle grievances. For example, if the employer chose Chuck Smith to be its representative and the union went on strike because they did not like Chuck Smith, the union would be in violation of this section, because the employer has the right to select its own representative. Similarly, if the union refused to bargain with Chuck Smith, that would also violate this section since its refusal would be an attempt to force the employer to choose a different representative, which is not allowed.

Discrimination Is Prohibited The statute continues by prohibiting a labor organization or its agents from discriminating against employees by denying or terminating someone’s union membership on grounds other than failure to pay the dues and initiation fees uniformly required as a condition of acquiring sea81813_05_c05_097-122.indd 109 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board or retaining membership. As the section states, it is an unfair labor practice for a labor orga - nization or its agents (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to ten - der the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. (29 U.S.C. § 158, 2012) Similarly, unions are barred from using unfair, irrelevant, or discriminatory considerations when they refer employees for work. Many unions run hiring halls , which are places one goes to get work through the union. If the union uses favoritism in recommending workers—or con - versely, discriminates against certain workers during this process—then it has departed from its established procedures, which could result in someone being denied work. For example, if Joe, a union member, goes to the hiring hall and is consistently denied work because he is Catho - lic or because the workers who run the hiring hall dislike him, he could bring a grievance under this section claiming discriminatory activity by the union.

Bargaining in Good Faith Finally, the statute concludes by affirming that just as an employer must bargain in good faith with a union, so too must the union bargain in good faith with the employer. The statute states that it is an unfair labor practice for a labor organization or its agents (3) to refuse to bargain collectively with an employer, provided it is the repre - sentative of his employees subject to the provisions of section 159(a) of this title. (29 U.S.C. § 158, 2012) The courts or the NLRB have at various times held that certain actions of labor unions have violated this section. In one case the union and the employer negotiated and reached an agree - ment, but the union ultimately refused to sign the written collective bargaining agreement (Scottsbluff Police Officers Ass’n Inc. v. City of Scottsbluff , 2011). In another the union refused to provide information necessary to make the collective bargaining agreement functional. Both cases represented violations of this section ( NLRB v. Local One-L, Amalgamated Lithographers of America , 2009). 5.4 The National Labor Relations Board No organization has a more essential role in dealing with labor disputes, labor policy, and union elections than the National Labor Relations Board. This section will introduce the workings of this critical agency and discuss how it resolves disputes between labor and sea81813_05_c05_097-122.indd 110 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board management. Before discussing the NLRB’s functions, however, it is necessary to first address some foundational concepts that demonstrate the NLRB’s powers.

Jurisdiction of the NLRB Jurisdiction refers to the NRLB’s power to hear certain disputes. The NLRB’s jurisdiction is defined in a number of ways, one of which is financial. For example, if a business is a retailer and has gross annual sales of $500,000 or more, the NLRB has jurisdiction over that busi - ness’s labor disputes. Retail includes a wide range of businesses, including hotels, cemeteries, and amusement parks.

Businesses engaged in interstate commerce have a much lower threshold for determining NLRB jurisdiction: $50,000. This includes businesses involved in transporting goods or even passengers, such as a private bus company. Companies that ship goods and trucking com - panies that haul goods would also be included under this statute. The reason for the lower threshold is due to the powers granted to Congress by the U.S. Constitution (Article 3, Sec - tion 1); businesses engaged in interstate commerce come under the purview of Congress.

Although Congress could rely on this fact to invoke jurisdiction over any business engaged in interstate commerce, instead it sets the minimum requirement at $50,000. Businesses that do not meet this threshold come under the purview of state laws.

These are but two examples of businesses that are covered by the NLRB based on the amount of money they gross per year. The NLRB will determine if it has jurisdiction before it will proceed with a case. If it does not, state remedies may be available to workers. For a full list of NLRB jurisdictional standards, visit ht tp://w w w.nlrb.gov/rights-we-protect /jurisdictional-standards . Structure of the NLRB The National Labor Relations Board is housed in its national office in Washington, D.C., with regional offices throughout the United States. The full board consists of five board mem - bers , one of whom is the chair. Each member is appointed by the president of the United States for a staggered term, meaning that each member’s term ends at a different time so that the entire board is not replaced all at once. The members serve as judges and hear disputes between management and labor in cases appealed to the board. Because they are political appointees, the decisions by the board tend to represent the current thinking of the adminis - tration, be it pro-labor or pro-management.

By statute, the board is charged with preventing unfair labor practices by both management and labor. By the time a matter reaches the board, it will have already passed through sev - eral layers of hearings, beginning with a regional director, followed by an administrative law judge, and finally the board itself if resolution is not obtained at lower levels. Figure 5.2 illus - trates these various levels. sea81813_05_c05_097-122.indd 111 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board The five board members are represented across the top row of Figure 5.2, with the chair rep - resented on the far left. Under each of the five board members are their direct reports. The chief counsel is the top legal advisor to each board member. The other counsel listed below the chief are also lawyers, as are the staff attorneys that populate the box at the bottom. Each board member has up to 19 attorneys at his or her disposal.

The bottom of the figure includes three other boxes representing the executive secretary , the solicitor , and the division of judges , along with the general counsel to the left of the board chair. A brief explanation of each follows.

The General Counsel The general counsel is appointed for a 4-year term by the U.S. president, with the approval of the Senate. The general counsel is independent from the board and is responsible for inves - tigating and prosecuting unfair labor practice cases and for generally supervising the NLRB field offices in processing cases. The general counsel is like a prosecutor who brings cases in court (before the NLRB).

The Executive Secretary As “the chief administrative and judicial management officer of the Board, represents the Board in dealing with parties to cases, and communicates on behalf of the Board with labor Figure 5.2: Organization of the National Labor Relations Board The purpose of the board is to prevent unfair labor practices between management and labor. Gener al Counsel The Boar d Boar d Member Boar d MemberandChair ofthe NLRB Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Division ofJudges Regional Director’s Decisions The solicit or and staf f pr ovide legal opinionsto the boar d as a whole The e xecutiv e secr etar y Administrativ e management of the boar d Manages theboar d’s caseload Boar d Member Boar d Member Boar d Member Gener al Counsel The Boar d Boar d Member Boar d MemberandChair ofthe NLRB Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Chief C ounsel Deput y Chief Counsel 3 Assistant Chief C ounsel SeniorCounsel Staf f of 1 2–1 4 Attorneys Division ofJudges Regional Director’s Decisions The solicit or and staf f pr ovide legal opinionsto the boar d as a whole The e xecutiv e secr etar y Administrativ e management of the boar d Manages theboar d’s caseload Boar d Member Boar d Member Boar d Member sea81813_05_c05_097-122.indd 112 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board organizations, employers, employees, Members of Congress, other agencies, and the public.

He or she receives, dockets, and acknowledges all formal documents filed with the Board; issues and serves on the parties to cases all Board Decisions and Orders; and certifies copies of all documents that are part of the Board’s files or records” (NLRB, n.d.c.).

The Division of Judges “The NLRB’s administrative law judges docket, hear, settle, and decide unfair labor practice cases nationwide, operating through offices in Washington, Atlanta, New York, and San Fran - cisco” (NLRB, n.d.c.). They attempt to settle cases among the various parties and if that fails, hold a hearing and write an opinion. There are 40 administrative law judges nationwide.

Regional Offices The NLRB has regional offices located throughout the United States. The map in Figure 5.3 represents the various regions, but to see the location of the offices on an interactive map, visit ht tp://w w w.nlrb.gov/who-we-are/regional-offices . Figure 5.3: Map showing the regional divisions of the National Labor Relations Board There are a total of 26 regional offices of the National Labor Relations Board, and its headquarters is in Washington, D.C.

http://w w w.nlrb.gov/who-we-are/regional-offices 18 27 19 20 31 21 32 28 16 15 12 14 25 10 7 1 29 22 3 4 5 6 8 9 13 2 19 20 Region 1 – Bost on Region 2 – N ew York Region 3 – Buf falo Region 4 – PhiladelphiaRegion 5 – Baltimor e Region 6 – Pit tsburgh Region 7 – Detr oit Region 8 – Cle veland Region 9 – CincinnatiRegion 1 0 – Atlant a Region 1 2 – Tampa Region 1 3 – Chicago Region 1 4 – St. Louis Region 1 5 – Ne w Or leans Region 1 6 – F ort Wo rth Region 1 8 – Minneapolis Region 1 9 – Sea ttle Region 20 – San Francisco Region 21 – Los Angeles Region 22 – Ne wark Region 25 – IndianapolisRegion 27 – De nver Region 28 – PhoenixRegion 29 – Br ookl yn Region 31 – Los Angeles Region 32 – O akland Missing number s reflect r egional o ffices that were mer ged with other r egional o ffices. 18 27 19 20 31 21 32 28 16 15 12 14 25 10 7 1 29 22 3 4 5 6 8 9 13 2 19 20 Region 1 – Bost on Region 2 – N ew York Region 3 – Buf falo Region 4 – PhiladelphiaRegion 5 – Baltimor e Region 6 – Pit tsburgh Region 7 – Detr oit Region 8 – Cle veland Region 9 – CincinnatiRegion 1 0 – Atlant a Region 1 2 – Tampa Region 1 3 – Chicago Region 1 4 – St. Louis Region 1 5 – Ne w Or leans Region 1 6 – F ort Wo rth Region 1 8 – Minneapolis Region 1 9 – Sea ttle Region 20 – San Francisco Region 21 – Los Angeles Region 22 – Ne wark Region 25 – IndianapolisRegion 27 – De nver Region 28 – PhoenixRegion 29 – Br ookl yn Region 31 – Los Angeles Region 32 – O akland Missing number s reflect r egional o ffices that were mer ged with other r egional o ffices. sea81813_05_c05_097-122.indd 113 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board To have a dispute heard by the NLRB, one must first file papers with the regional office. Since the establishment of the NLRB, the regional offices have taken on increasingly more respon - sibility and are now an invaluable part of the hearing and election process. We will see how this process works in the next section.

Resolving Unfair Labor Practices Among the most important of the NLRB’s responsibilities is to resolve unfair labor practice disputes. Unfair labor practices can occur in a variety of forms and against any of the players in a labor dispute, including employees, employers, the labor organization, individuals, or a combination of any of these entities.

The process of resolving an unfair labor practice dispute begins at the regional level and pro - gresses upward. The final stop is at the NLRB offices in Washington, D.C., where the matter is heard by the board if it is serious enough to warrant full review.

Filing Charges With the Regional Office Charges of unfair labor practices are first filed in one of the regional offices. The regional offices are geographic, meaning that the charge is filed in the geographic area in which the incident occurred. A map is provided to help claimants find their local offices, and claimants are also given addresses and contact information. The regional offices also assist claimants with the paperwork necessary to start the claim process; all paperwork must be filed within 6 months of the incident.

Investigation and Dispute Resolution Once filed, the case is assigned to a board agent. The person bringing the charge—called the charging party—is requested to submit a written statement of what happened. The regional office conducts an investigation that includes interviews with all parties con - cerned. After the investigation is completed, there are a number of options available to resolve the dispute: • Withdraw the charge . If the investigation reveals there is no violation, the charg - ing party is given an opportunity to withdraw the charge , or retract it. If he or she declines, the board will dismiss the case. The statistics in Table 5.1 from the NLRB show how few controversies actually culminate in a board hearing. In 2013, 21,009 cases were filed; of those, 7,450, or 35%, were withdrawn by the complainant; 7,193, or 34%, were dismissed; and of the original 21,009, only 522 resulted in board orders, or 2% of the total originally filed. Table 5.1: Disposition of unfair labor practice charges in FY13 Withdrawal Settlement and adjustments Dismissal Board orders 7,450 7,193 5,844 522 Source: National Labor Relations Board, n.d.b. sea81813_05_c05_097-122.indd 114 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board • Dismiss the case . If the charging party refuses to withdraw a charge that lacks merit, the regional director will issue a letter that states no formal complaint will be issued, thereby resulting in a dismissal of the case. Note that the NLRB advises the parties of their right to appeal this decision and the time frame for doing so. • Defer the charges to arbitration . Many collective bargaining agreements contain a clause that mandates arbitration if a grievance occurs. Arbitration is a resolution process in which an arbitrator is hired to enter the dispute and resolve it; an arbitra - tor can be thought of as a private judge who will hear both sides and then determine who is wrong and right. When a case is deferred to arbitration, the board does not hear the case; instead, an arbitrator is hired to hear the dispute. As a general rule, the arbitration is binding on both parties, meaning that they must comply with the arbitrator’s decision. • Settlement. If the investigation reveals a violation, the regional office will meet with the parties to try and reach a voluntary settlement. If a settlement takes place, it is either an informal or a formal settlement. If informal, the agreement is subject to the approval of the regional director; if formal, it must be approved by the board. • Issue a complaint . If after meeting it is apparent that the parties will not be able to reach a voluntary settlement, the regional director will determine if formal action should be taken or if the matter should be dismissed. If the regional director determines that action should be taken, he or she will issue a complaint against the respondent , the person alleged to be the wrongdoer, and, at his or her dis - cretion, have it served on (delivered to) the parties involved. The complaint is a formal document containing the allegations of wrongdoing. During this time, the parties may still settle the issue, but once a complaint is filed, only a formal settle - ment can be reached with the resulting mandated board approval. The respondent has 10 days to respond with a formal piece of writing called an answer. Once the complaint and answer are submitted to the NLRB regional office, the case then proceeds to a hearing at one of the regional offices before one of the regional judges, called an admin - istrative law judge (ALJ).

The Hearing The hearing at the regional level takes place much like a trial. It is overseen by the administra - tive law judge, and a representative from the general counsel’s office acts as the prosecutor.

Prior to the complaint being issued, the general counsel acts in an investigatory role to deter - mine if an unfair practice actually took place; once the complaint is filed, however, the office becomes prosecutorial (Fischer, Garren, & Truesdale, 2008). There is usually an attorney for the complainant and one for the respondent, as well as the parties themselves and witnesses.

Figure 5.4 illustrates the respective parties. sea81813_05_c05_097-122.indd 115 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board At the hearing, witnesses are called to testify and may be subjected to cross-examination.

Just as in court, a court reporter takes a record of the proceedings. When the testimony is completed, the parties may submit comprehensive legal arguments to the ALJ in the form of briefs, which are statements of the case and arguments for the respective positions based on law.

Once the briefs have been submitted, the ALJ has a number of options: 1. Dismiss the complaint in whole or in part. For those parts not dismissed, the ALJ will issue an order to cease and desist, or immediately stop, the wrongful practices. 2. Dismiss the entire complaint . This means that the ALJ did not find any wrongdo - ing; in essence, the respondent “wins.” 3. Decide there was an unfair labor practice . This may result in remedies such as a cease-and-desist order, making the wrongful party comply with the law or face fur - ther punishment. If the matter is serious enough, it may be appealed to the full board in Washington, D.C.

Under the National Labor Relations Act, the NLRB cannot assess penalties against a wrong - doer. Instead, the agency has a number of other types of remedies if it finds an employer guilty of a wrongful act. These include reinstatement of the employee and paying back wages if he or she was discharged, along with informational remedies that include posting a detailed notice to workers telling them what the employer did wrong and stating that the employer will cease the wrongful behavior. An example of such a notice is provided in Figure 5.5.

Figure 5.4: Schematic of the parties in a hearing before an administrative law judge An administrative law judge can decide to dismiss the complaint, find no wrongdoing, or decide there is an unfair labor practice. Attorney for Complainant ComplainantPerson f iling the complaint ag ainst the r espondent ALJ Judge Pre siding Ov er the Hear ing Attorney for the Respondent RespondentPerson ag ainst whom the char ge has been f iled Attorney for the Gene ral Counsel(Prosecuting) Attorney for Complainant ComplainantPerson f iling the complaint ag ainst the r espondent ALJ Judge Pre siding Ov er the Hear ing Attorney for the Respondent RespondentPerson ag ainst whom the char ge has been f iled Attorney for the Gene ral Counsel(Prosecuting) sea81813_05_c05_097-122.indd 116 12/10/14 3:34 PM Section 5.4 The National Labor Relations Board Figure 5.5: Notice by the NLRB of an unfair labor practice In the notice, an employer acknowledges and agrees to cease wrongful behavior.

SpaceRef. (2014). Adapted from http://images.spaceref.com/news/2014/jpl.nlrb.lrg.jpg NATIONAL LABOR RELATIONS BOARD NO TICE TO EMPL O YEES POS TED B Y ORDER OF THE NA TIONAL LABOR RELA TIONS BO ARD AN AGENC Y OF THE UNITED S TATES GO VERNMENT The National Labor R elations Boar d has f ound that we violat ed F ederal labor la w and has or der ed us t o post and obe y this notic e. FEDER AL LA W GIVES YOU THE RIGHT TO F orm, join, or assist a union Choose r epr esentativ es t o ba rgain with us on your behalf Act together with other emplo yees f or y our bene fit and p rotection Choose not t o eng age in an y of these pr otected activities WE WILL NO T discipline or otherwise discr iminat e ag ainst an y of you because y ou eng age in pr otect ed, concer ted activities . WE WILL NO T in an y lik e or r elat ed manner int erfere with, r estrain, or coer ce y ou in the exe rcise of the r ights guarant eed y ou b y Section 7 of the Act. WE WILL , within 1 4 da ys fr om the dat e of this Or der , remo ve fr om our f iles an y reference t o the unla wful wr itten w arnings giv en t o R ober t Nelson, Dennis Byr nes , Scot t Maxwell, Larr y D ’ Addar io, and William Br uce Baner dt, and WE WILL , within 3 days ther eaf ter, notify each of them in wr iting that this has been done and that the written w arnings will not be used ag ainst them in an y way. Da ted: _________ By: ___________________________________________________ The National Labor R elations Boar d is an independent F ederal Agency c reated in 1 935 t o enf orce the National Labor R elations Act. It conducts sec ret-ballot elections t o de termine whether emplo yees w ant union r epr esentation and it in vestig ates and r emedies unf air labor practices b y emplo yers and unions . To find out mo re about y our r ights under the Act and ho w to file a char ge or election petition, y ou ma y speak conf identiall y to an agent with the Boar d’s Regional Of fice set f orth belo w. You ma y also obtain inf ormation fr om the Boar d’s websit e: www .nlrb .go v. Agency Toll F ree Number : 1-866-667 -6572. CALIFORNIA INS TITUTE OF TECHNOL OGY JET PR OPUL SION LABORA TO RY (Emplo yer) THIS IS AN OFFICIAL NO TICE AND MUS T NO T BE DEF ACED B Y ANY ONE Re gion 31, National Labor R elations Boar d,1 1500 West Ol ympic Bl vd., Suit e 600, Los Angeles , CA 90064. Telephone: (31 0) 235-7351 . Hour s: 8:30 am–5:00 pm. This notice must r emain post ed f or 60 consecutiv e da ys fr om the dat e of posting and must not be alt ered, def aced, or c overed b y an y other mat erial. Any questions concer ning this notice or compliance with its pr ovisions ma y be dir ect ed t o the Boar d’s Of fice, (Repr esentativ e) (Title) FORM NLRB-4727 (9-69) 2 1 3 4 NATIONAL LABOR RELATIONS BOARD NO TICE TO EMPL O YEES POS TED B Y ORDER OF THE NA TIONAL LABOR RELA TIONS BO ARD AN AGENC Y OF THE UNITED S TATES GO VERNMENT The National Labor R elations Boar d has f ound that we violat ed F ederal labor la w and has or der ed us t o post and obe y this notic e. FEDER AL LA W GIVES YOU THE RIGHT TO F orm, join, or assist a union Choose r epr esentativ es t o ba rgain with us on your behalf Act together with other emplo yees f or y our bene fit and p rotection Choose not t o eng age in an y of these pr otected activities WE WILL NO T discipline or otherwise discr iminat e ag ainst an y of you because y ou eng age in pr otect ed, concer ted activities . WE WILL NO T in an y lik e or r elat ed manner int erfere with, r estrain, or coer ce y ou in the exe rcise of the r ights guarant eed y ou b y Section 7 of the Act. WE WILL , within 1 4 da ys fr om the dat e of this Or der , remo ve fr om our f iles an y reference t o the unla wful wr itten w arnings giv en t o R ober t Nelson, Dennis Byr nes , Scot t Maxwell, Larr y D ’ Addar io, and William Br uce Baner dt, and WE WILL , within 3 days ther eaf ter, notify each of them in wr iting that this has been done and that the written w arnings will not be used ag ainst them in an y way. Da ted: _________ By: ___________________________________________________ The National Labor R elations Boar d is an independent F ederal Agency c reated in 1 935 t o enf orce the National Labor R elations Act. It conducts sec ret-ballot elections t o de termine whether emplo yees w ant union r epr esentation and it in vestig ates and r emedies unf air labor practices b y emplo yers and unions . To find out mo re about y our r ights under the Act and ho w to file a char ge or election petition, y ou ma y speak conf identiall y to an agent with the Boar d’s Regional Of fice set f orth belo w. You ma y also obtain inf ormation fr om the Boar d’s websit e: www .nlrb .go v. Agency Toll F ree Number : 1-866-667 -6572. CALIFORNIA INS TITUTE OF TECHNOL OGY JET PR OPUL SION LABORA TO RY (Emplo yer) THIS IS AN OFFICIAL NO TICE AND MUS T NO T BE DEF ACED B Y ANY ONE Re gion 31, National Labor R elations Boar d,1 1500 West Ol ympic Bl vd., Suit e 600, Los Angeles , CA 90064. Telephone: (31 0) 235-7351 . Hour s: 8:30 am–5:00 pm. This notice must r emain post ed f or 60 consecutiv e da ys fr om the dat e of posting and must not be alt ered, def aced, or c overed b y an y other mat erial. Any questions concer ning this notice or compliance with its pr ovisions ma y be dir ect ed t o the Boar d’s Of fice, (Repr esentativ e) (Title) FORM NLRB-4727 (9-69) 2 1 3 4 sea81813_05_c05_097-122.indd 117 12/10/14 3:34 PM Summary & Resources The posting in Figure 5.5 sets out the wrongful acts. Arrows 1 and 2 are the paragraphs stat - ing the employer will not discipline, discriminate, or infringe Section 7 rights to engage in protected, concerted activities; arrow 3 names the employees involved and agrees to retract the warnings given to them in the matter; arrow 4 shows the name and the location of the regional office issuing the notice.

Alternative Dispute Resolution Program As noted previously, the parties may refer the matter to alternative dispute resolution . This applies if the employees are already unionized and their collective bargaining agree - ment includes a clause stating that in the event of an unfair labor practice, they agreed to use dispute resolution.

In 2005 the NLRB created its own alternative dispute resolution program. The board provides an experienced mediator who helps the parties arrive at a confidential resolution to their dispute. Mediators do not impose a settlement; instead, they help the parties reach their own satisfactory conclusion to the dispute. Disputes may also be referred to mediators at the Fed - eral Mediation & Conciliation Service. An in-depth discussion of mediation and arbitration takes place in Chapter 8.

This chapter began with a discussion of the rights that workers receive under Section 7 of the National Labor Relations Act and concluded with the enforcement arm of that law, the National Labor Relations Board. In 2013 there were more than 20,000 complaints filed with the NLRB (National Labor Relations Board, n.d.b.). That means that employees thought that managers or labor organizations denied their rights more than 20,000 times. Each of those proceedings involved hiring attorneys and spending hours of time in preparation. Businesses could avoid many such costs by becoming familiar with these laws. It is an expensive lesson that might well be circumvented by thoughtful and knowledgeable managers.

Summary & Resources Summary of Chapter Concepts • Section 7 grants all workers four major rights: to self-organize, collectively bargain, strike, and refrain from union activity. • Employees have the right to engage in concerted activities for their mutual aid or protection, and this applies to all employees, whether unionized or not. This right includes postings on websites that criticize employers. • Strikes must have a lawful objective and be carried out in a lawful manner. • Workers often waive their right to engage in a strike when they negotiate their col - lective bargaining agreement. • Employees have lost a great deal of the power they once had, because strikes are less effective, given that employers may hire replacement strikers; secondary boy - cotts are outlawed, and hot cargo agreements are limited to the construction and garment industries. • Section 7 gives unionized workers the right to engage in collective bargaining, which is a process whereby union and management meet to negotiate a contract that spells out the terms and conditions of employment (the collective bargaining agreement). sea81813_05_c05_097-122.indd 118 12/10/14 3:34 PM Summary & Resources • A union security agreement is a contract between union and management that states all workers hired will have to join the union, thus making the place of employment a union shop; both security agreements and union shops are outlawed in the 24 states that have passed right-to-work legislation. • Employers have numerous duties under Section 8, including providing Weingarten rights, or union representation at a disciplinary hearing. They are also not allowed to engage in domination, which is when the employer controls a labor organization, even if unintentionally. • Labor organizations can also violate the NLRA by restraining, coercing, or discrimi - nating against employees in regard to their Section 7 rights and/or by refusing to bargain collectively with the employer. • The NLRB is a federal administrative agency located in Washington, D.C., and includes regional offices overseen by regional directors throughout the United States. • The NLRB has jurisdiction over unfair labor practices and union elections in private places of business that are engaged in interstate commerce. It also defines matters over which it has jurisdiction by minimal financial amounts. • If the NLRB does not have jurisdiction over a dispute, it cannot render or enforce decisions. • The board itself consists of five members, with a general counsel reporting to the chair and a chief counsel, deputy chief, and three assistant counsel reporting to each board member. • At the national level, the board acts like an appeals court, hearing disputes from its regional offices. • At the regional level, the office acts like a court in that it hears disputes and oversees elections at private businesses within its jurisdictional territory. • The NLRB has the power to resolve unfair labor practices through hearings at the regional office level overseen by an administrative law judge. Key Terms alternative dispute resolution The pro - cess of resolving a dispute outside of court; it includes mediation and arbitration.

arbitration The process whereby an arbi - trator hears a dispute and makes a decision about who should prevail.

bargaining in good faith The obligation to meet and negotiate at reasonable times with adequate information to make informed decisions.

bargaining representative The person or persons designated by the employees or union to represent them in collective bar - gaining with management. binding Enforceable. board member In the context of the NLRB, one of five members who hear cases at the national level and write decisions on behalf of the NLRB.

chief counsel The supervising attorney in the respective NLRB office.

complaint A formal paper issued by the NLRB when it finds that there is a basis to continue with a charge of wrongdoing.

division of judges The NLRB’s 40 admin - istrative law judges who docket, hear, settle, and decide unfair labor practice cases nationwide. sea81813_05_c05_097-122.indd 119 12/10/14 3:34 PM Summary & Resources domination A type of unfair labor practice that occurs when the actions by manage - ment override the concerns of labor.

economic striker Workers who are strik - ing because their bargaining demands have not been met by the employer.

exclusive bargaining agent The person or persons designated by the workers to nego - tiate the collective bargaining agreement with management.

executive secretary The chief administra - tive officer of the NLRB.

general counsel Appointed by the presi - dent to a 4-year term, an attorney who is independent from the NLRB and is respon - sible for the investigation and prosecution of unfair labor practice cases.

hiring halls A place run by a union where members go to secure work.

hot cargo agreement An agreement between a union and a neutral company that the neutral company will not deal with an employer because the union has a dis - agreement with that employer. The neutral company also agrees to cease or refrain from using, selling, transporting, or handling any of the products of an employer that the union has labeled as unfair.

mediator A person who is brought in to a controversy to try and help the parties arrive at a mutually acceptable compromise.

primary boycott A refusal to do business with a company in order to force the com - pany to give in to union demands.

regional offices Localized offices of the NLRB throughout the United States.

reinstatement An order by the NLRB to put a wronged worker back in his or her original job. replacement strikers Workers who take over the jobs of striking employees.

respondent The party at fault in the NLRB decision.

restrain or coerce To keep employees from being able to exercise their Section 7 rights.

right-to-work state A state that allows nonunion workers not to pay dues to a union even if they are part of that union’s bargain - ing unit.

solicitor The chief legal officer who advises the NLRB on questions of law and policy.

unfair labor practice An act by an employer or a labor organization that is a violation of the National Labor Relations Act.

unfair labor practice striker Employees who go on strike because they believe their employer is committing an unfair labor practice.

union activity The right to self-organize, form, join, or assist labor organizations, bargain collectively, and engage in concerted activities for mutual aid or protection.

union security agreements An agreement between an employer and a union that all newly hired employees will join the union; a union shop.

waiver A legal paper in which a person or persons give up rights, sometimes by sign - ing the paper; other times a waiver might be part of a larger agreement or contract.

waive the right to strike To give up the right to strike in a waiver.

Weingarten rule The right to union repre - sentation during an investigatory interview.

withdraw the charge To retract or take back the charge; this occurs when there is no evi - dence to support a charge before the NLRB. sea81813_05_c05_097-122.indd 120 12/10/14 3:34 PM Summary & Resources Critical Thinking Questions 1. The National Labor Relations Board consists of five members who serve staggered terms and who are appointed by the president of the United States. How do you think the president’s political outlook plays into who is appointed to sit on the board? How might this impact the decisions made by the board from presidential term to term? 2. Unions use strikes as a way to force employers to meet their demands. What are the two types of strikers? How does the type of striker impact whether their demands will be met? Would you go out on strike if you thought you might not have a job at the end of the strike? How does losing one’s job impact the strength of unions to get their demands made? 3. What are right-to-work states? What is the relationship of a right-to-work state and a closed shop? A union shop? A union security agreement? How do you think right-to-work states will impact union membership throughout the United States? 4. European factories have historically used work councils in their plants. These councils are composed of workers and management who meet to discuss problems and seek solutions. Suppose that a U.S. plant wished to create such a council in a unionized plant here. What problems would it face legally with such a concept? Does the law make it possible for a council to exist in a U.S. plant? (See ht tp://democrats.edworkforce .house.gov/press-release/miller-creation-new-works-council-chat tanooga-win-v w -employees-and-supporters-workers%E2%80%99 for more information on this topic.) Research Projects 1. Choose five class members to be the board members of your mock National Labor Relations Board and one to be general counsel. Then choose a team to represent the respondent (including attorneys) and a team to represent the NLRB. After you have constituted the teams and the NLRB, pick a case from those discussed in this chapter and present it to your mock NLRB. The board should then write a decision stating its findings of law and fact. 2. Take a large writing pad and divide it into two columns. In the left column write all of the rights of employees that you can think of from this chapter. Then in the right column, see if you can identify a concomitant duty on behalf of management. sea81813_05_c05_097-122.indd 121 12/10/14 3:34 PM sea81813_05_c05_097-122.indd 122 12/10/14 3:34 PM